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REPORTS
OF
CASES AT LAW AND IN CHANCERY
AEGUED AND DETERMINED IN THE
SUPREME COURT OF ILLINOIS.
NOEMAN L. FEEEMAN,
EEPOETEE.
VOLUME 108.
Containing Cases in which Opinions were filed in November,
1883, in January, 1884, and some Cases in which appli-
cations for Rehearing were denied at
the January Term, 1884.
PEINTED FOE THE EEPOETEE.
SPRINGFIELD:
1884.
Entered according to Act of Congress, in the year 1884, by
NORMAN L. FREEMAN,
In the office of the Librarian of Congress at Washington.
H. W. ROKKER,
Stereotypes, Printer and Binder,
Springfield, Illinois.
JUSTICES OF THE SUPREME COURT
DURING THE TIME OF THESE REPORTS.
Justices.
BENJAMIN R, SHELDON, Chief Justice.
PINKNEY H. WALKEK,
T. LYLE DICKEY,
JOHN M. SCOTT,
JOHN SCHOLFIELD,
JOHN H. MULKEY,
ALFRED M, CRAIG,
ATTORNEY GENERAL,
james McCartney.
REPORTER,
NORMAN L. FREEMAN.
CLERK IN THE SOUTHERN GRAND DIVISION,
J. 0. CHANCE, Mt. Vernon.
CLERK IN THE CENTRAL GRAND DIVISION,
ETHAN A. SNIVEL Y, Springfield,
CLERK IN THE NORTHERN GRAND DIVISION,
E. F. DUTTON, Ottawa.
JUDGES OF THE APPELLATE COURTS
DURING THE TIME OF THESE REPORTS.*
Foe the Firsjt District — Chicago:
joseph m. bailey,
william k. McAllister,
isaac g. wilson.
For the Second District — Ottawa:
NATHANIEL J. PILLSBURY,
GEORGE W. PLEASANTS,
" LYMAN LACEY.
For the Third District— Springfield:
oliver l. davis,
chauncey l. higbee,
david Mcculloch.
For the Fourth District — Mt. Vernon:
DAVID J. BAKER,
GEORGE W. WALL,
THOMAS S. CASEY.
* •
In cases of appeals from or writs of error to any of the Appellate Courts,
which may be reported in this volume, where the names of the judges of
those courts are not given in the report, it will be understood the judges
constituting the court in that particular District named were as above stated.
TABLE OK CASES
KEPOBTED IN THIS VOLUME.
A PAGE.
PAGE.
Adams et al. ads. Halstead
609
Coburn ads. Herrington
613
Alexander et al. ads. Heyer et al.
385
Coleman et al. ads. West Chicago
Allen et al. v. Powell et al
584
Park Commissioners
591
Anderson v. Fruitt
378
Columbus Buggy Co. et al. v.
Anderson ads. Fort Clark Horse
64
Graves ....
4W
Ky. Co
Com'rs of Highways v. Harrison.
398
Anderson ads. Spence et al
457
Connelly et al. ads. Piper
646
B
Bangor Furnace Co. v. Magill. . .
Barton v. De Wolf et al
County of Cook v. Harms
151
656
195
Cruger, Admx. et al. ads. Dob-
bins, Admr
188
Battenhousen ads. Bullock
28
r>
Bearss et al. v. Ford
16
Davis v. Hamlin *
39
Branch, Exr. v. Bankin, Admr. .
444
Davis et al. ads. First National
Breed v.. Gorhain et al
81
Bank of Galesburg
633
Bullock v. Battenhousen
28
Davis et al. ads. Jordan
336
C
Carter et al . v. Bodewald et al. .
Castner ads. Phenix
Champion ads. Gerdes
De Wolf et al. ads. Barton
195
351
207
137
Dill ads. Doggett, Ex'x
Doane ads. Walker
Dobbins, Admr. v. Cruger, Admx.
560
236
188
560
216
330
Chappell v. McKnight
Cheney et al. v. Teese et al
Chicago, City of, ads. Herhold
570
473
467
496
288
Doggett, Ex'x. v. Dill
Dormueil et al. v. Ward et al. . .
Douthett v. Winter
et al :
Chicago, City of, ads. Howland.
Chicago & Alton K. K. Co. v.
May, Admx
Dowden et al. v. Wilson
Droit et al. ads. McCracken ....
Durand v. Weightman et al
257
428
489
Chicago, Burlington & Quincy
E
B. B. Co. v. Warner
538
Eagleston ads. Quinn et al
248
Chicago, Milwaukee & St. Paul
East St. Louis, City of, v. Wittich
By. Co. v* Keokuk Northern
et al *
449
Line Packet Co
317
East St. Louis Connecting By. Co.
Chicago & Northwestern By. Co.
v. East St. Louis Union By. Co.
265
v. Moranda, Admx.
576
East St. Louis Gas Light and
Chicago, Bock Island & Pacific
Coke Co. ads. Parsons et al...
380
By. Co. v. Clark, Admx
113
East St. Louis Union By. Co.
Clark, Admx. ads. Chicago, Bock
ads. East St. Louis Connecting
Island & Pacific By. Co
113
By. Co
265
VIII
TABLE OF CASES REPOBTED.
F PAGE.
J PAGE.
Fame Ins. Co. ads. Thomas
91
Johnson, Collector, ads. Potwin.
70
Field et al. ads. Town of Gol-
Johnson, Collector, ads. Wabash,
conda et al
419
St. Louis & Pacific By. Co. . .
11
First National Bank of Gales-
Jordan v. Davis et al
336
burg v. Davis et al
633
Ford ads. Beards et al..
16
K
Fort Clark Horse By. Co. v.
Kadish et al. v. Young et al
170
Anderson ....
64
Kellogg v. Hale et al
164
Fjuitt ads. Anderson. . .
378
Keokuk Northern Line Packet
Funk ads. Lawson et al. . .
502
Co. ads. Chicago, Milwaukee
and St. Paul By. Co
317
G
Kinney v. The People
519
Garland ads. Ins. Co. of North
Kitterman et al. ads. Gudgel,-
America .
220
Admr
"50
Genoa, Village of, v. YanAlstine 555
Gerdes v. Champion
137
L
Golconda, Town of, et al. v. Field
Lawson et al. v. Funk
502
et al
419
Lear ads. Marion County
343
Goodnow et al. ads. Sutherland.
528
Louisville, New Albany and Chi-
Gorham et al. ads. Breed
81
cago By. Co. v. Shires, Admr.
617
Graves ads. Columbus Buggy Co.
Louisville, Village of, v. Webster
et al. . . .
459
et al
414
Grier v. Puterbaugh
602
Lubukee ads. Heacock
641
Gudgel, Admr. v. Kitterman et al.
50
Ludwig ads. United States Ins.
H
Co
514
Hairston et al. v. Ward et al.. . .
87
Lunt et al. v. Lunt
307
Hale et al.ads. Kellogg
164
Halstead v. Adams et al
609
M
Hamilton ads. Tucker
464
Magill ads. Bangor Furnace Co.
656
Hamlin ads. Davis
39
Marion County v. Lear
343
Hanifan v. Needles
403
Massachusetts Mutual Life Ins.
Harms ads. County of Cook. . . .
151
Co. et al. ads. Tyler et al
58
Harrison ads. Commissioners of
May, Admx. ads. Chicago and
Highways
398
Alton B. B. Co
288
Ha worth v. Tavlor
275
McCleave ads. Wabash, St. Louis
Heacock v. Lubukee
641
and Pacific By. Co
368
Herhold et al. v. City of Chicago.
467
McCracken v. Droit et al
428
Herrington v. Coburn
613
McKean et al. v. Vick
373
Heyer et al. v. Alexander et al. .
385
McKnight ads. Chappell
570
Howland v. City of Chicago
496
Meisser ads. Thompson*
359
Hutchinson etal. ads. Smith, etal.
662
Moore v. The People
Moranda, Admx. ads. Chicago
484
I
and Northwestern By. Co
576
Insurance Co. of North America
Morgan & Co. ads. Saup et al. .
326
v. Garland
220
International Bank of Chicago
N"
et al. v. Wilshire
143
Needles ads. Hanifan
403
TABLE OF CASES REPORTED.
IX
O PAGE.
Ohio and Mississippi Ry. Co.
ads. Weber, Collector, et al. . 451
Owners of Lands ads. The Peo-
ple ex rel 442
P
Parsons et al. v. East St. Louis
Gas Light and Coke Co 380
People ads. Kinney 519
People ads. Moore 484
People ex rel. v. Owners of
Lands 442
Phenix v. Castner 207
Pierce ads. Sivwright, Collector. 133
Piper v. Connelly et al 646
Potter et al. ads. Trustees of
Schools 433
Potwin v. Johnson, Collector. ... 70
Powell et al. ads. Allen et al. . . . 584
Prussing, Admr. ads. Rosenthal,
Public Admr 128
Puterbaugh ads. Grier. 602
Q-
Quinn et al. v. Eagleston 248
R
Rankin, Admr. ads. Branch, Exr. 444
Rice et al. v. Rice et al 199
Rodewalde£ al. ads. Carter et al. 351
Rosenthal, Public Admr. v. Prus-
sing, Admr 128
S
Saup et al. v. Morgan & Co 326
Shires, Admr. ads. Louisville,
New Albany and Chicago Ry.
Co 617
Sivwright, Collector, v. Pierce. . 133
Smith et al. v. Hutchinson et al. 662
Spence et al. v. Anderson 457
Spitler v. Spitler.' 120
Sutherland v. Goodnow et al. . . . 528
T
Taylor ads. Haworth 275
Teese et al. ads. Cheney et al. . . 473
Thomas v. Fame Ins. Co 91
PAGE.
Thompson v. Meisser 359
Trustees of Schools v. Potter
et al 433
Tucker v. Hamilton 464
Tyler et al. v. Massachusetts
Mutual Life Ins. Co. et al 58
IT
United States Ins. Co. v. Lud-
wig 514
V
Van Alstine ads. Village of
Genoa 555
Vick ads. McKean et al 373
W
Wabash, St. Louis and Pacific
Ry. Co. v. Johnson, Collector. 11
Wabash, St. Louis and Pacific
Ry. Co. v. McCleave 368
Wabash, St. Louis and Pacific
Ry. Co. v. Zeigler 304
Walker v. Doane 236
Ward et al. ads. Dormueil et al.. 216
Ward et al. ads. Hairston et al. . 87
Warner ads. Chicago, Burlington
and Quincy R. R. Co 538
Weber, Collector, et al. v. Ohio
and Mississippi Ry. Co 451
Webster et al. ads. Village of
Louisville 414
Weightman et al. ads. Durand. . 489
West Chicago Park Commission-
ers v. Coleman et al 591
Wilshire ads. International Bank
of Chicago et al 143
Wilson ads. Dowden et al 257
Winter ads. Douthett 330
Wittich et al. ads. City of East
St. Louis 449
Y
Young et al. ads. Kadish et al. . 170
Z
Zeigler ads. Wabash, St. Louis
and Pacific Ry. Co 304
CASES
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF ILLINOIS
The Wabash, St. Louis and Pacific Eailway Company
v.
William T. Johnson, Collector.
Filed at Ottawa November 20, 1883.
1. Taxes — assessment of omitted railroad personal property. Where
a railroad company returns and files with the county clerk of a county a
sworn list of all its taxable property in such county, except its personal prop-
erty in one town, which is omitted, it is made the duty of the town assessor
to list and assess such omitted property, and if he lists it upon his general
assessment roll instead of upon the county clerk's copy of the railroad sched-
ules furnished him, it is but an informality not affecting the substantial jus-
tice of the tax levied thereon, and furnishes no ground to enjoin the collection
of the taxes extended on such assessment.
2. Same — assessment of property not'listed — no notice to owner neces-
sary. Where a person furnishes the assessor with a list and valuation of his
property, which is accepted without question, the assessor has no power to
alter or raise the same without notice to the party assessed; but where the
assessor discovers other property than that listed, he is not required to give
the owner notice before he can list and assess it.
3. Same — when collection will be enjoined. A court of equity will not
entertain a bill to restrain the collection of a tax, except in cases where the
tax is unauthorized by law, or assessed upon property not subject to taxa-
tion, or where the assessment or levy has been made without legal authority,
or fraud has occurred. For all other grounds the party must be left to his
remedy at law, if any.
12 W., St. L. & P. Ey. Co. v. Johnson. [Nov.
Statement of the case.
Writ of Error to the Superior Court of Cook county ; the
Hon. John A. Jameson, Judge, presiding.
This was a bill in chancery, filed by the railway company
in the Superior Court of Cook county, to enjoin the collection
of a personal property tax. A demurrer was sustained »to
the bill, and the bill dismissed. The case is brought here by
writ of error.
The bill sets out that in the year 1881 the company made
out the schedules of its "right of way" and "rolling stock,"
and filed them with the county clerk of Cook county, as
required by law, and also a list of personal property other
than "rolling stock," which list showed property in only four
towns, viz : Orland, Palos, Worth and Lake ; that the county
clerk returned the list to the assessors of those towns, who
valued the property listed as being in each town, and then
returned it to the county clerk ; that the property was entered
on the county clerk's "Eailroad Tax Book" for the year 1881,
and the taxes were by him extended thereon, his warrant to
the county collector was attached thereto, and the company
paid all taxes charged against its property on that "Eailroad
Tax Book" to the defendant, as county collector; that by
mistake and inadvertence the company omitted to return and
file with the county clerk a list of its personal property other
than "rolling stock" situated in the town of South Chicago,
or to include it in its list so furnished ; that the assessor of
the town of South Chicago finding this personal property in
South Chicago, did not add it to. the copy of the list or sched-
ule returned to and filed with the county clerk, and assess
and value it there, but did list, assess and value it in and on
his general assessment roll for the town of South Chicago, in
which he listed, assessed and valued taxable property other
than railroad property ; that the assessor did not give the
company any notice of such listing, nor did it have any notice
or knowledge thereof until it was called upon by the collector
1883.] W., St. L. & P. Ey. Co. v. Johnson. 13
Statement of the case.
of the town of South Chicago to pay the tax ; that this gen-
eral assessment roll, in due course, came to the county clerk,
who extended the taxes against the company on that property,
and delivered the tax roll or book for South Chicago, with his
tax warrant, to the town collector, who applied for payment ;
the company refused to pay ; the collector did not proceed to
collect the tax, but returned it as delinquent to the county
collector; that it is, by virtue of such listing, assessment,
etc., and the warrant issued by the county clerk to the town
collector, and the return of the tax as delinquent to him by
the town collector, and not by or under any other authority,
that the county collector claims the right to collect the said
tax, and threatens to do so.
The Eevenue law requires railroad companies to return and
file with the county clerks of the respective counties in which
the railroad may be located, sworn lists of all their taxable
property. Section 47 of the act provides, that "the county
clerk shall return to the assessor of the town or district, as
the case may require, a copy of the schedule or list of the
real estate, (other than 'railroad track,') and of the personal
property (except 'rolling stock') pertaining to the railroad ;
and such real and personal property shall be assessed by the
assessor. Such property shall be treated in all respects in
regard to assessment and equalization, the same as other
similar property belonging to individuals, except that it shall
be treated as property belonging to railroads, under the terms
'lands,' 'lots,' and 'personal property.' ' Section 49 is: "If
any person, company or corporation, owning, operating or
constructing any railroad, shall neglect to return to the
county clerk the statements or schedules required to be re-
turned to them, the property so to be returned and assessed
by the assessor shall be listed and assessed as other prop-
erty." By section 51 the county clerk is required to procure
a record book, in which to enter the railroad property of all
kinds, as listed for taxation, and shall enter the valuation as
II W., St. 1,. \ l\ In. Co. r. Johnson. |Nov.
Opinion of tho Court.
assessed, lie is to extend tho taxes on this book against the
property. At tho proper time "tho clerk shall attach a war-
rant, under his seal of ottioo, ami deliver said hook to tho
county oolleotor, upon which tho county collector is hereby
required to collect the taxos thoroin charged against railroad
property." etc.
"Messrs. Si.KK.rKK \- NYhiton, for tho plaintiff in error,
Mr. E. R. BUSS, for tho defendant in error.
Mr. CuiK.K »1 1' stick Sukkoon delivered the opinion of the
Court :
The statute required the railway company to return and
tile with the county clerk sworn lists oi all its taxahle prop-
erty in Cook county. It did return and tile lists of its prop-
erty, but not of all its property. In that respect it neglected
to return to the county clerk the statements or schedules
required to be returned to him. in which case the 40th sec-
tion of the statute made it the duty oi the assessor to list
and assess this omitted property. This omitted property,
then, was rightfully assessed by the assessor. Hut it is
objected against this assessment that the assessor should
have listed this omitted property upon the county clerk's copy
of the railroad schedule furnished to him. and not upon his
general assessment roll. If this be so, it would be but a
mere informality in the proceeding of the assessment, and
so within section 101 of tho Revenue act, that "no error or
informality in the proceedings of any oi the officers connected
with the assessment, levying or collection of the taxes, not
affecting the substantial justice of the tax itself, shall vitiate
or in any manner atVect the tax or the assessment thereof."
The point is made that the assessor had no authority to
list and assess this omitted property without notice to the
railroad company, and CUghorn v. PostUwa&te, 43 111. 4'2>.
1883.] W., St. L. & P. Ry. Co. v. Johnson. 15
Opinion of the Court.
McConkey v. Smith, 73 id. 313, and National Bank of Shaw-
neetown v. Cook, 77 id. 622, are referred to as sustaining the
position. Those cases are only to the effect that when a
person furnishes the assessor with a list and valuation of his
property, which is accepted by 'the assessor without question,
the assessor has no power afterward to alter the same with-
out first giving the party assessed notice. But we know of
no authority for the position, that if an assessor discovers
other property than that listed, he must give the owner notice
before he can list and assess it.
It is further contended that the county collector, the defend-
ant here, had no authority to collect these taxes ; that the
county clerk is required by the statute to enter all kinds of
railroad property in his "Railroad Tax Book," and is required
to extend all the taxes thereon on that book, and attach to it
his warrant, and deliver the book to the county collector ; and
that this is the only way in which power is conferred on the
county collector to collect railroad taxes, — by the warrant of
the county clerk attached to the. "Railroad Tax Book," and
delivered to the county collector ; that since the statute gives
the county collector, alone, power to collect railroad taxes,
and taxes against railroad property have no place on the gen-
eral tax roll, and can only be extended on the county clerk's
"Railroad Tax Book," the fact that this personal property
was entered on the general tax roll, and the tax against it
extended there, did not give the town collector any power to
collect the taxes against it, and so the warrant to the town
collector, and his delinquent return, could not confer on the
county collector any greater power to collect than the town
collector had. This is a question which we do not deem it
necessary to determine. This supposed want of power to
collect the tax would not be a ground for the interposition
of a court of equity, under the decisions of this court. The
party must be left to his remedy at law in that respect. We
have repeatedly held that a court of equity will not entertain
16 Bearss et at. v. Ford. [Nov.
Syllabus.
a bill to restrain the collection of a tax, excepting in cases
where the tax is unauthorized by law, or assessed upon prop-
erty not subject to taxation, or where the assessment or levy
has been made without legal authority, or fraud has occurred.
Cook County v. Chicago, Burlington and Quincy R. R. Co. 35
111. 466 ; Porter v. Rockford, Rock Island and St. Louis R. R.
Co. 76 id. 596 ; National Bank of Shawneetown v. Cook, 77
id. 622.
We find no error in sustaining the demurrer and dismiss-
ing the bill, and the decree is affirmed.
Decree affirmed.
Charles Bearss et al.
v.
Thomas P. Ford.
Filed at Ottawa November 20, 1883.
1. Moktgage — whether an absolute deed with agreement for repur-
chase, or a mortgage. Where a debtor whose indebtedness is secured by
deeds or trust, and to avoid a threatened foreclosure, conveyed the mortgaged
premises to his creditor by a quitclaim deed, containing a proviso that if he
should pay a certain sum (being the amount due from him, with interest and
back taxes,) within one year, with interest thereon, the grantee should recon-
vey the premises to him, and the grantee also executed to the grantor a lease
of the premises for one year, at a rental equal to the interest on the debt,
payable monthly, which monthly rental, it was recited, was to be deemed and
applied as interest, under the conditions of the quitclaim deed, it was held,
that the transaction was but a mortgage for the payment of the indebtedness
of the grantor, and was not an absolute sale and extinguishment of the prior
indebtedness.
2. Whether a deed for land is an absolute sale and conveyance, with an
agreement for a repurchase by the grantor, or a mortgage to secure the pay-
ment of money, is a question of fact, depending upon the intention of the
parties to it at the time of its execution.
3. Same — when deed absolute in form is given as a further security,
creditor may still enforce his prior securities. Where a deed absolute in
1883.] Bearss et al. v. Ford. 17
Syllabus.
form, with a clause for repurchase, is given in consideration of an existing
mortgage indebtedness, the court is more inclined to treat it as a mortgage
than where given upon an original advance, and when so treated the new
mortgage will not be regarded as a substitute for the former security, unless
the intention to that effect is manifest; and in siich cases the original mort-
gage may be foreclosed, notwithstanding the giving of the new one.
4. If the new instrument operates as a satisfaction or extinguishment of
the mortgage indebtedness, it will be regarded as a sale and conveyance of
the equity of redemption, with an agreement for a repurchase; but if it does
not so operate, such new instrument will be treated as an additional security
for the debt, — or, in other words, as an additional mortgage, — and the creditor
may enforce either one.
5. Same — deed — when a mortgage, continues so. Parties can not make
a conveyance of land, absolute in form, a security for the payment of money
by a given day, and if payment is not then made, have it treated as an abso-
lute sale and conveyance. Every deed takes effect from delivery, and its
character thereby becomes at once fixed. If a mortgage when delivered, it
continues so until the right of redemption is barred by some of the modes
recognized by law. The parties can not, even by express stipulation in a
mortgage, cut off the right of redemption.
6. Evidence— extrinsic, to show intention of parties by their written
contracts. In arriving at the intention of the parties in executing a written
contract, the instrument itself must first be looked to, for, as a general rule,
where there is nothing equivocal or ambiguous in its terms it should be given
effect according to the plain and obvious import of the language used, unless
to do so will lead to unreasonable or absurd consequences.
7. Same— exception to rule excluding parol evidence to explain. There
is a well established exception to the general rule by which parol evidence is
not admitted to vary or explain a written contract, which permits the show-
ing of a deed plain and unambiguous in its terms, and absolute on its face,
to be a mortgage, or mere security for the payment of money, or the perform-
ance of some other act or duty. So an instrument substantially in the form
of a mortgage may, in like manner, be explained, with a view of arriving at
the real intention of the parties.
8. Contract — construction, when several writings must be construed
together. In construing whether a conveyance is an absolute deed, or a
mortgage, or security for the payment of money, it must be considered in
connection with a lease accompanying it, from the grantee to the grantor,
when both are parts of the same transaction. In such case they will be con-
strued as though they were different parts of the same instrument.
9. Error — in admission of evidence, afterwards cured. If the admis-
sion of a deed of trust in evidence, without any explanation as to an erasure
and interlineation, except a memorandum of the officer taking the acknowl-
edgment that "all erasures and interlineations" were made before signing, is
2—108 III.
18 Bearss et al. v. Ford. [Nov.
Brief for the Appellants.
error, it will be cured by the subsequent admission of evidence giving the
explanation desired, and for the want of which the deed was objected to.
10. Estoppel — by deed, from denying validity of prior deed. Where
a deed of trust showed on its face that the name of the original trustee was
erased, and that of another inserted, and the grantors afterwards gave a new
deed to their creditor, in which is expressly recognized the validity of the
trust deed, the grantors therein will be estopped from raising any question
as to the authenticity or binding force of the trust deed.
Appeal from the Appellate Court for the Second District ;
— heard in that court on appeal from the Circuit Court of
Will county; the Hon. Josiah McBoberts, Judge, presiding.
Mr. C. W. Brown, for the appellants :
Any material alteration of an instrument, made without
the assent of the party having executed it, will have the
effect of avoiding it. Gardner v. Harback, 21 111. 129; Pret-
tyman v. Goodrich, 23 id. 330; Kelly v. Trumbull, 74 id. 428;
Wyman v. Youmans, 84 id. 403 ; People v. Organ, 27 id. 27,
A party who receives a paper interlined in a material part
must assume the responsibility of explaining it afterward,
when claiming the benefit of the paper, the presumption of
law being that the interlineation was made after its execu-
tion. Hodge v. Gilman, 20 111. 437.
A sale with an agreement for a repurchase comes very
near in form and substance with a mortgage, but the rights
of the parties under these instruments are very different. A
mortgage may be redeemed at any time before foreclosure,
while there can be no redemption from a conditional sale
after the day appointed. 1 Jones on Mortgages, sec. 262,
note 4.
An absolute deed delivered in payment of a debt is not,
converted into a mortgage merely because the grantee therein
gives a contemporaneous stipulation binding him to reconvey
on being reimbursed, within an agreed period, an amount
equal to the debt and the interest thereon. If the convey-
ance extinguishes the debt, and the parties so intend, so that
1883.] Bearss et al. v. Ford. 19
Brief for the Appellee.
a plea of payment would bar an action thereon, the transac-
tion will be held an absolute sale notwithstanding. 1 Jones
on Mortgages, sec. 267; Turner v. Kerr, 44 Mo. 429; Farmer
v. Grose, 42 Cal. 169; Baugher v. Merryman, 32 Md. 185;
Weathersly v. Weathersly, 40 Miss. 462 ; Morrison v. Brand,
5 Daly, (N. Y.) 40.
The agreement to reconvey the lands is not necessarily,
either in law or in equity, a defeasance. 1 Jones on Mort-
gages, sec. 260, 261, and cases cited in note.
If an absolute conveyance be made and accepted in pay-
ment of an existing debt, and not merely as security for it,
an agreement by the grantee to reconvey the land to the
grantor upon receiving a certain sum within a specified time,
does not create a mortgage, but a conditional sale, and the
grantee holds the premises subject only to the right of the
grantor to demand a reconveyance according to the terms of
the agreement. 1 Jones on Mortgages, sec. 265, and cases
cited in note ; Pitts v. Cable, 44 111. 103.
Although the securities are not surrendered, if the debt
is extinguished a simple right to repurchase does not make
the conveyance a mortgage. West v. Hendrix, 28 Ala. 226 ;
Baxter v. Wiley, 9 Vt. 276 ; Todd v. Campbell, 32 Pa. St. 250 ;
1 Jones on Mortgages, sec. 326.
Messrs. Hill & Dibell, for the appellee :
A mortgage is a conveyance of land as a security for the
repayment of money borrowed, with a proviso that such con-
veyance shall be void on payment of the money, etc., as stip-
ulated. 2 Bouvier's Law Diet. "Mortgage, " 3 ; 1 Jones on
Mortgages, sec. 241.
A deed with a bond or agreement to reconvey the estate
upon payment of a certain sum of money, has always been
held to constitute a legal mortgage. 1 Jones on Mortgages,
sec. 244.
20 Bearss et al. v. Ford. [Nov.
Brief for the Appellee.
If a conveyance of land be made in fee, and the grantee
gives back a bond to reconvey upon repayment of the con-
sideration money, and to permit the grantor to occupy the
premises at a rent equal to the interest on the consideration,
these are parts of one and the same transaction, and consti-
tute a mortgage. 1 Jones on Mortgages, sec. 273 ; Presch-
baker v. Feaman, 32 111. 482 ; Ewart v. Walling, 42 id. 453 ;
Woodward v. Pickett, 8 Gray, 617 ; Wright v. Bates, 13 Vt. 341.
The fact that the evidences of the indebtedness are not
given up or cancelled on the debtor's making a conveyance,
is strong evidence that the conveyance is a mortgage. Jarcis
v. Frink, 14 111. 396; Dunphy v. Riddle, 86 id. 28; Sutphen
v. Gush-man, 35 id. 196; Rue v. Dole, ante, p. 275.
The taking of a second mortgage on the same land is no
waiver of the original mortgage. 2 Jones on Mortgages, sec.
929; Gregory v. Thomas, 20 Wend. 17; Rill v. Beebee, 3
Kern. 562.
A conveyance by mortgagor to mortgagee of the mortgaged
premises, even in payment of the mortgage debt, extinguishes
and releases, or does not extinguish and release, the mort-
gage lien, according to the intention of the mortgagee, if that
is shown, and if not, then as may be for the interest of the
mortgagee. 4 Kent's Commentaries, 102 ; 2 Washburn on
Eeal Prop. 180-182, sees. 1, 2; 1 Jones on Mortgages, sees.
857, 870 ; Campbell v. Carter, 14 111. 286 ; Werner v. Heintz,
17 id. 262 ; Fitts v. Davis, 42 id. 391 ; Edgerton v. Young, 43
id. 46S ; Huebsch v. Scheel, 81 id. 285 ; RicJiardson v. Hocken-
hull, 85 id. 124; Shaver v. Williams, 87 id. 470; Worcester
National Bank v. Cheney, id. 614 ; Mtna Life Ins. Co. v. Corn,
id. 170; Young v. Morgan, 89 id. 199 ; Meacham v. Steele, 93
id. 143; Campbell v. Trotter, 100 id. 281.
There is no presumption, from inspection, when, or by
whom, or for what purpose, the instrument has been altered.
Reed Y.Kemp, 16 111. 449; Gillett v. Sweet, 1 Gilm. 4S9;
1 Greenleaf on Evidence, sec. 564, note, sec. 566, note 1.
18S3.] Bearss et al. v. Ford. 21
Opinion of the Court.
Mr. Justice Mulkey delivered the opinion of the Court :
On May 22, 1874, the appellant Charles Bearss borrowed
of Thomas P. Ford, the appellee, $1200, giving his note there-
for, and to secure the payment thereof executed a deed of
trust to T. H. Hutchins upon a tract of land in Will county,
this State, the same being Bearss' homestead. On the 28th
of December following, Ford made another loan of $290.36
to Bearss, for which he and his wife executed to Ford their
promissory note, and a deed of trust to Elbert T. Chase, on
the same property, to secure the loan. Both the above notes
bear interest at the rate of ten per cent per annum, payable
semi-annually, and by their terms matured on the 22d of
May, 1879. These trust deeds contained the usual clause
that if default was made in the payment of the interest, or
any part of it, according to the terms of the note the whole
of the principal and interest should thereupon become due
and payable. In April, 1878, a part of the interest and
taxes on the premises being in arrears, Ford was threaten-
ing to foreclose, when negotiations opened between him and
Bearss, resulting, after some delay, in the following arrange-
ment : Bearss and wife were to execute a conveyance of the
premises to Ford, with a proviso in it that if Bearss should,
on or before the first of July, 1879, pay the amount of the
two trust deeds, interest, back taxes, etc., the conveyance was
to be void, and Ford was to reconvey to Bearss. On the
other hand, Ford was to execute to Bearss a lease of the
premises from the first day of July, 1878, to the first of July,
1879, at an annual rental of $161.88, to be paid in equal
monthly installments, being $K>.49 per month. These papers
were accordingly made out, and placed in the hands of C. W.
Brown, the attorney of Bearss, with the understanding he
was to hold them until the first of July, 1878, so as to afford
Bearss an opportunity, in the meantime, of paying Ford the
amount of interest and back taxes due under the trust deeds,
22 Bearss et al. v. Ford. [Nov.
Opinion of the Court.
in which event Brown was not to deliver them at all, hut if
Bearss failed to make such payment, then the lease and deed
were to he delivered to Ford. Bearss having failed to make
payment by the first of July, as contemplated by the above
arrangement, Ford sent Hutchins for the deed and lease,
and they were delivered to him by Brown about five o'clock
in the evening. On examination Ford found there was no
release of the homestead in the body of the deed, and for
that reason returned the papers next morning to Brown's
office, from whence they had been taken the evening before,
and were left there for Bearss, who declined to receive them
or to execute a new deed with waiver of homestead, and
thereupon Ford filed the present bill to foreclose the two
deeds of trust. There was a hearing of the cause upon the
merits in the circuit court of Will county, resulting in a
decree in favor of appellee, which, on appeal to the Appellate
Court for the First District, was affirmed, and the case comes
here from the latter court for review.
The most important question presented by this record
relates to the legal effect of the deed executed by Bearss and
wife, in pursuance of the arrangement entered into between
him and Ford in April, 1878, as heretofore stated. It is
contended by appellee that the facts proven do not show a
valid delivery of that instrument, but that, conceding a suf-
ficient delivery is shown, it is in legal effect nothing more
than another mortgage to secure the same debt. Appellants
maintain the negative of both these propositions, and insist
the deed in question was, and is, an absolute sale and trans-
fer of the estate, and not a mere security for a prior debt,
and that the condition contained in it is simply an under-
taking or covenant on the part of the grantee to resell to the
grantor, upon specified terms, within a limited time.
Assuming, for the purposes of the argument, the evidence
shows a sufficient delivery of the instrument in question, (a
matter about which we express no opinion,) we shall proceed
18S3.] Bearss et al. v. Ford. 23
Opinion of the Court.
at once to the consideration of the inquiry, was the deed in
question an absolute sale and conveyance with an agreement
for a repurchase by the grantor, or was it a mortgage ? The
answer to this question, of course, depends upon what was
intended by the parties to it at the time of its execution. In
arriving at the intention of the parties the instrument itself
must be first looked to, for, as a general rule, where there is
nothing equivocal or ambiguous in the terms of a written in-
strument it should be given effect according to the plain and
obvious import of the language used, unless to do so would
lead to unreasonable or absurd consequences. A well estab-
lished exception to this general rule is found in the law of
mortgages, which permits the showing of a deed plain and
unambiguous in its terms, and absolute on its face, to be a
mortgage or mere security for the loan of money, or for the
performance of some other act or duty. Yet no question of
that kind is presented in this case, but rather the counter-
part of it, for here the instrument under consideration is
substantially in form a mortgage, and the question is, may
it nevertheless be shown to be in legal effect a different kind
of instrument ? However this may be as a general proposi-
tion, we are of opinion, under the circumstances of this case,
the whole subject is open to inquiry, with a view of arriving
at the real intention of the parties.
In looking at the deed in question we must consider it in
connection with the lease accompanying it, as both are parts
of the same transaction, and must therefore be construed
as though they were different parts of the same instrument.
The deed itself bears date April 30, 1878, and recites that
Bearss and wife, as parties of the first part, for the consid-
eration of $1619.66, "have remised, released, aliened and
quitclaimed, " unto Ford and his heirs, all their right, title,
etc., in and to the premises in question ; that the considera-
tion of the deed is the amount of indebtedness secured by
the two trust deeds in controversy, and that the convey-
21 Bearss et al. v. Ford. [Nov.
Opinion of the Court.
ance is made on account of default in the payment of said
indebtedness, and to save the expenses of foreclosure. Then
follows the habendum clause, "to have and to hold the same, "
etc., "upon condition, however, if said party of the first part
shall, on or before the 1st of July, 1879, pay, or cause to be
paid, by themselves or their heirs and assigns, said sum of
$1619.66, with interest thereon at ten per cent per annum
from July 1, 1878, together with all taxes which are or may
be levied upon the said premises, with ten per cent interest
if said taxes are paid by party of second part, then this deed
to be void ; and said party of second part agrees, for himself
and wife, to execute to party of first part a quitclaim deed
for said premises upon compliance with said condition. " The
lease accompanying this deed is very short, and outside of
the fact of making the lease, it contains nothing that has any
special bearing on the question in hand, except the last clause,
which is as follows : "It (the lease) further witnesseth, that
said monthly rental, as paid, is to be deemed and applied as
interest, under the conditions of a quitclaim deed from said
Bearss and wife to said Ford for said premises, bearing date
April 30, 1878."
As already indicated, if we leave out of view one or two
expressions in the deed, it is unquestionably in form a mort-
gage, and had it been given upon an original advance of
money, the fact of its being a mortgage would hardly have
been questioned ; and yet it must be conceded that courts, in
construing instruments of this kind, when the consideration is
an existing mortgage indebtedness, are more inclined to treat
them as mortgages than when given upon an original advance,
and when so treated they will not be regarded j#f£ substitute
for the former security, unless the intention to that effect is
manifest, and in such cases the original mortgage may be
foreclosed notwithstanding the giving of the new one, hence
the principle "once a mortgage always a mortgage," has be-
come a leading fundamental doctrine of the law of mortgages.
18S3.] Bearss et al. v. Ford. 25
Opinion of the Court.
The most satisfactory, and as a general rule the controlling,
test in cases of this kind is, does the giving of the new in-
strument operate as a satisfaction or extinguishment of the
mortgage indebtedness ? If it does not, such new instrument
will be treated as an additional security for the debt, — or, in
other words, as an additional mortgage ; but if otherwise, it
will be regarded as a sale and . conveyance of the equity of
redemption with an agreement for repurchase.
Testing this case by the rule suggested, we have no hesi-
tancy in holding the so-called quitclaim deed was a mere
additional security, and not an absolute conveyance of the
property. We are led to this conclusion by a number of
considerations : First, the instrument contains no provision
that it shall operate as any extinguishment or satisfaction of
the mortgage debt ; second, we see nothing in it looking to,
much less providing for, a surrender to Bearss of the notes
and prior trust deeds, — the evidences of such indebtedness ;
third, we find nothing in the provisional agreement between
the parties, under which the deed and lease were executed,
requiring the surrender or cancellation of the notes and trust
deeds ; and, finally, the lease in express terms recognizes the
existence of the mortgage debt after the period fixed for the
delivery of these instruments, viz., the 1st of July, 1878.
As already shown, the lease in express terms provides the
monthly rental of the premises shall be applied as interest,
under the deed of that date, which conclusively shows the
parties did not intend, at least for the time being, to extin-
guish the mortgage debt, otherwise the rent could not be
applied as interest. Interest on what? Manifestly, the old
mortgage indebtedness, for there was no other indebtedness
to which that provision of the lease could apply.
Looking at the terms of these instruments in the light of
all the circumstances disclosed by the evidence, we are satis-
fied the object of the parties in executing them was not to
satisfy or extinguish the mortgage indebtedness, but to con-
26 Bearss et al. v. Ford. [Nov.
Opinion of the Court.
tinue the right of redemption until the 1st of July, 1879, —
and this is wholly inconsistent with the hypothesis that the
instrument in question was an absolute deed. The parties
may have intended, and doubtless did intend, that if the
premises were not redeemed before the 1st of July, 1879, it
should then become so in order to avoid the expenses of a
foreclosure. But it is evident that parties can not, by mere
agreement, change the law of the land. (Dicey on Parties,
37, 38, side page.) Every deed or other instrument takes
effect from its delivery, and its character thereby becomes at
once fixed. It can not, after such delivery, be one thing
to-day and another to-morrow. If a mortgage when deliv-
ered, it continues to be such until the right of redemption is
barred by some of the modes recognized by law. Hence
nothing is more firmly established in the law of mortgages
than that it is not competent for the parties, even by express
stipulation, to cut off the right of redemption, and to permit
them to make such an instrument an absolute deed upon
some future contingency, would simply be cutting off the right
of redemption, which, as we have just seen, can not be done.
2 Jones on Mortgages, sec. 1039, et seq.
After a very careful consideration of the whole case we
are satisfied the law is with the appellee on this question,
and without entering upon any general review of the cases
we will content ourselves with calling attention to the follow-
ing authorities in support of the conclusion reached : 1 Jones
on Mortgages, sec. 273 ; Preschbaker v. Feaman, 32 111. 482 ;
Eioart v. Walling, 42 id. 453; Croff v. B ailing er, 18 id. 203;
Jarvis v. Frink, 14 id. 396 ; Sutphen v. Cushman, 35 id.
196; Dunphy v. Riddle, 86 id. 28.
It appears in the junior trust deed of the 28th of Decem-
ber, 1875, as originally written, the name of T. H. Hutchins,
the officer before whom the acknowledgment was taken, was
inserted as trustee, and that while in the act of taking the
acknowledgment, or immediately afterwards, it occurred to
1883.] JBearss et al. v. Ford. 27
Opinion of the Court.
him that by reason thereof he could not properly take the
acknowledgment, whereupon he struck his own name out,
and inserted in its stead that of E. T. Chase. Mrs. Bearss
claims that the alteration was made without her knowledge
or consent, and after she had left the house where it was
taken, though she concedes she was called by her husband
and told something was wrong, and requested to come back,
and he admits the change was made with his consent ; but
she and her husband both state she refused to come back.
Hutchins, the officer, swears : "My best recollection is that I
called to Bearss and wife, and informed them that the change
was necessary. The change was then made without objection
from anybody." After all this had occurred the officer's cer-
tificate was made out in due form, and we think, under the
authorities, it is, of itself, entitled to more weight than the
testimony by which it is attacked. Fitzgerald v. Fitzgerald,
100 111. 385 ; Strauch v. Hathaway, 101 id. 11 ; Warrick v.
Hull, 102 id. 280.
When this deed was offered in evidence, it was objected to
on the ground of the erasure occasioned by the substitution
of Chase's name for Hutchins'. There was at the foot of the
deed, when offered in evidence, the following memorandum,
signed by the officer taking the acknowledgment : "All eras-
ures and interlineations made before signing." The court
overruled the objection and admitted the deed in evidence,
and this is assigned for error. Conceding the court should
have heard some evidence explanatory of the erasure in ques-
tion in addition to that afforded by the memorandum, yet a
court of error will not reverse for such an error when the
record before it affords, as it does in this case, the very expla-
nation which it is complained was not given as a foundation
for the instrument's admission in evidence. When the ex-
planatory evidence is subsequently offered it cures the error.
But outside of all this there is another complete answer to
this objection. The appellants, by their deed of the 30th of
28 Bullock v. Battenhousen. [Nov.
Syllabus.
April, 1878, which is duly acknowledged by them both, ex-
pressly recognize the validity of this junior trust deed, and
they are therefore, under the circumstances of this case,
estopped from raising any question as to its authenticity
or binding force. We think the decided weight of evidence
shows that Bearss and his wife both knew of the alteration
in question at the time of making the latter deed, and they
can not now be heard to complain after such recognition of
the former deed.
We see no reason for disturbing the decree of the court
below, and it will therefore be affirmed.
Decree affirmed.
John M. Bullock
v.
Martha E. Battenhousen.
Filed at Ottawa November 20, 1883.
1. Recording law — record of deed of trust referring to note without
giving amount, no notice of amount. Under the registry laws of this State
the record of a trust deed which simply recites that the grantor had, on the
same date of the deed, made his promissory note, payable to, etc., without
giving its amount, will not charge subsequent bona fide purchasers without
actual notice with knowledge of the amount for which the note was given.
2. Mortgage — should disclose the amount of debt secured. If a mort-
gage is given to secure an ascertained debt, the amount of that debt should
be stated; and if it is intended to secure a debt not ascertained, such data
should be given respecting it as will put any one interested in the inquiry
upon the track leading to a discovery. If it is given to secure an existing or
a future liability, the foundation of such liability should be set forth.
3. The policy, though not the letter, of our statutes, requires in all cases
a statement upon the record of the amount secured by a mortgage or deed
of trust.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Circuit Court of Cook
county; the Hon. M. F. Tuley, Judge, presiding.
18S3.] Bullock v. Battenhousen. 29
Statement of the case.
On the 11th of June, 1872, Eben F. Bunyan made and
delivered to John M. Bullock his promissory note for $6000,
payable five years after date, with interest thereon at ten per
cent per m annum, payable semi-annually, and at the same
date Bunyan and wife executed and delivered to Bullock a
deed of trust conveying the east half of section 28, and the
east half of the north-east quarter of section 33, town 36
north, range 12 east, third principal meridian, in Cook county,
to John B. Bullock, trustee, upon the following trust, that is
to say :
"Whereas, said Eben F. Bunyan has made his promissory
note, bearing date the 11th day of June, 1872, payable to the
order of John M. Bullock, five years after date, with interest
at the rate of ten per cent per annum, payable semi-annu-
ally, * * * in case of default in the payment of the said
promissory note and interest, or either or any part thereof,
* *-. * on the application of the legal holder of said note,
it shall be lawful for the said party of the second part, his
heirs, assigns or successors in trust, to enter into and upon
the premises hereby granted, * * * and to sell and dis-
pose of the said premises, * * ' * an^« out 0f the pro-
ceeds of such sale, after first paying all costs of advertising
and sale, commissions, and all other expenses. of this trust,
and interest due on said note, according to the tenor and
effect thereof, rendering the overplus (if any) unto the said
party of the first part, his legal representatives or assigns,
on reasonable request. * * * And it is stipulated and
agreed that in case of default in the payment of said promis-
sory note or interest, as aforesaid, of a breach in any of the
covenants or agreements herein mentioned, the whole of said
principal of said promissory note, and the interest to the
time of sale, shall, at the option of the legal holder of said
note, become due and payable, and the said premises may be
sold as if the said indebtedness had matured."
30 Bullock v. Battenhousen. [Nov.
Statement of the case.
This instrument was filed for record in the proper office on
the 21st of June, 1872, and duly recorded on the same day.
Payments appear to have been made on the promissory
note by Eunyan, as follows: June 11, 1873, $600, as inter-
est; July 1, 1875, $1200, as interest.
The following instrument was duly filed for record in the
proper office on the 12th of September, 1874, and recorded
on the 22d day of September, 1874, to-wit :
"Know all men by these presents, that John R. Bullock,
of the city of Waukegan, in the county of Lake, and State
of Illinois, for and in consideration of one dollar, and for
other good and valuable considerations, the receipt whereof
is hereby confessed, do hereby grant, bargain, remise, convey,
release and quitclaim unto Eben F. Bunyan, of the city of
Chicago, in the county of Cook, and State of Illinois, all the
right, title, interest, claim or demand whatsoever I may have
acquired in, through or by a certain trust bearing date the
11th day of June, A. D. 1872, and recorded in the recorder's
office of Cook county, in the State of Illinois, (in book 86 of
"Records, " page 483,) to the premises therein described as
follows, to-wit: The east half of section twenty-eight (28),
and the east half of the north-east quarter of section thirty-
three (33), in township number thirty-six (36) north, range
twelve (12) east of the third principal meridian, in the county
of Cook, in the State of Illinois, together with all the appur-
tenances and privileges thereunto belonging or appertaining.
"Witness my hand and seal this 7th day of September,
A D 1 874
a. v. io<i. JoHN E< BxJLL0CK? Trustee. [Seal.] "
"State op Illinois,
Cook County.
"I, Frederick S. Baircl, a notary public in and for the said
county, in the State aforesaid, do hereby certify that John R.
Bullock, trustee, personally known to me to be the same per-
son whose name is subscribed to the foregoing instrument,
1883.] Bullock v. Battenhousen. 31
Statement of the case.
appeared before me this day in person, and acknowledged that
he signed, sealed and delivered the said instrument as his
free and voluntary act, for the uses and purposes therein set
forth.
"Given under my hand and notarial seal this 12th day of
September, A. D. 1874.
Frederick S. Baird,
[Notarial seal.] Notary Public."
On the 16th, of July, 1874, Eunyan and wife executed and
delivered to Christian Battenhousen a deed for the said east
half of section 28, and also for the west half of the north-
east quarter of section 33, all in town 36 north, range 12
west, in Cook county. John M. Bullock, on the 30th of
August, 1S77, filed his bill in chancery in the office of the
clerk of the circuit court of Cook county, against Kunyan and
wife, and Christian Battenhousen, Martha Battenhousen, and
others, alleging therein, among other things, that said pre-
tended release was a forgery, the non-payment of the amount
due on the promissory note executed to him by Bunyan, after
deducting certain admitted payments, and that Battenhousen
is a purchaser junior to and subordinate to his rights under
the deed of trust, and praying that said pretended release of
John B. Bullock be set aside, etc. ; that said deed of trust be
foreclosed, and the premises therein described be sold, etc.,
for the payment of the amount due on the said promissory
note, etc. Christian and Martha Battenhousen answered,
denying the forgery of the release of John B. Bullock, alleg-
ing they were purchasers for full value, and in good faith
believing, as Bunyan then assured them, that the premises
were free of all incumbrances ; that they are Germans, unac-
quainted with the English language, and relied upon what the
records disclosed and Bunyan assured them, — that the deed
of trust to John B. Bullock, trustee, was released.
Beplication was filed, and the cause was heard at the March
term, 1880, of the circuit court, on bill, answer, and proofs
32 Bullock v. Battenhousen. [Nov.
Statement of the case.
%— _
then introduced, and the court thereupon decreed that the
pretended release of John E. Bullock be set aside, and that the
premises be sold for the payment of the amount due to John
M. Bullock on the said promissory note. The Battenhousens
appealed from this decree to the Appellate Court for the First
District, and that court, at its October term, 1880, reversed
the judgment of the circuit court, and remanded the cause for
further proceedings. After the cause was remanded Chris-
tian Battenhousen died, and at the October term, 1881, of the
circuit court, the death of Christian Battenhousen was sug-
gested, and leave was given to Martha Battenhousen to file
an amended and supplemental answer, which she then pro-
ceeded to do. In this answer Martha Battenhousen denied,
specifically, all the material allegations of the bill, and charged
that the trust deed is of no binding force, validity or effect as
a lien upon the premises, and against the defendant, and
that it does not secure said indebtedness or said note, and
that the same is not now, and never has been, a lien upon
said premises for any purpose, against said defendant ; that
in July, 1874, Christian Battenhousen purchased of Bunyan
the west half of the north-east quarter of section 33, and the
east half of section 28, town 36 north, range 12 east, third
principal meridian, for $20,000, and that Kunyan executed
to him a warranty deed therefor, in which he covenanted
that the premises were free from incumbrance ; that Batten-
housen then paid Bunyan $4100 of the purchase money, and
executed notes, and mortgage upon the premises, securing
deferred payments in one, two, three, four, five, six, seven
and eight years, with eight per cent interest, payable annu-
ally, which mortgage was then recorded ; that at the time of
the purchase Bunyan represented to Battenhousen that the
premises were clear of all incumbrances ; that Battenhousen
had no actual knowledge or notice of the trust deed, and that
"the record thereof was not constructive notice of the existence
of the same for the purposes claimed in the bill, or for any
1883.] Bullock v. Battenhousen. -33
Brief for the Appellant.
purpose, and that said trust deed is insufficient to create a
lien upon said premises, as against defendant ; that Batten-
housen, after said release was filed for record, relying thereon,
paid off a large amount of said indebtedness ; that $20,000
was an adequate price for said premises ; that Bunyan dis-
posed of said notes, before due, to parties who now hold
them; that on the .5th of April, 1881, Battenhousen con-
veyed the premises to defendant. To this there was also rep-
lication filed, and the cause was again heard at the March
term, 1882, of the circuit court, when a decree was again
rendered setting aside the release as a forgery, and foreclos-
ing, etc., the trust deed. An appeal was also prosecuted
from this decree to the Appellate Court for the First District,
and that court, at its October term, 1882, reversed the decree
of the circuit court, and refused to remand the cause, and
this appeal is prosecuted to reverse that judgment.
Messrs. Seaels & Cook, for the appellant :
Whatever is sufficient to put a subsequent purchaser on
inquiry is notice to him of what such inquiry would lead to
the knowledge of the inquirer. 1 Story's Eq. Jur. (12th ed.)
sec. 403 ; 2 White & Tudor's Leading Cases in Equity, part
1, p. 117; Parkist v. Alexander, 1 Johns. Ch. 394; Bent v.
Coleman, 89 111. 364; United States Mortgage Co. v. Gross,
93 id. 4S3 ; Watt v. Schofield, 76 id. 261 ; Buchanan v. Inter-
national Bank, 78 id. 500 ; Chicago, Bock Island and Pacific
B. B. CoS. Kennedy, 70 id. 350; Merrick v. Wallace, 19 id.
486 ; Morrison v. Kelley, 22 id. 610.
It is urged by appellee that the foregoing rule and deci-
sions are inapplicable to a mortgage, as between a mortagee
and a purchaser, for value, from the mortgagor having no
actual notice ; and in this case, as the record does not state
the amount in dollars secured by the note, that Battenhousen
was not called upon to inquire as to it, and therefore no
recovery can be had against him. On the contrary, we urge
3—108 III.
34 Bullock v. Battenhousen. [Nov.
Brief for the Appellee.
that all the description required to be made of the debt in a
mortgage is a general one, which will put those interested
upon inquiry. 1 Jones on Mortgages, (2d ed.) sees. 343, 70 ;
Youngs v. Wilson, 27 N. Y. 351 ; Babcock v. Disk, 57 111. 327;
Booth v. Barnum, 9 Conn. 286 ; Grisivold v. Matheivs, 5 id.
442 ; Wright v. Frost, 3 id. 146 ; Crane v. Deming, 7 id. 387 ;
Frlnk v. Branch, 16 id. 259 ; Utley v. Smith, 24 id. 290 ; Lewis
v. Be Forest, 20 id. 427; North.Y. Beldcn, 13 id. 376; Somer-
ivorth Savings Bank v. Roberts, 38 N. H. 22 ; Kellogg v. Fra-
zier, 40 Iowa, 502; Reckilson v. Richardson, 19 Cal. 330;
Williams v. Moniteau National Bank, 72 Mo. 292 ; Hard v.
Robinson, 11 Ohio St. 232; Gill v. Pinney, 12 id. 38; Soot/?/
v. Davis, 20 N. H. 140; Bassett v. Bassett, 10 id. 64; £oz/d
v. Par/cer, 43 Md. 182 ; Robinson v. Williams, 22 N. Y. 380 ;
Michigan Ins. Co. v. Brown, 11 Mich. 266 ; Carnall v. Duval,
2 Kan. 136; id v. Lee, 61 Mo. 160; Pike v. Cofes, 33
Maine, 38; Flodgen v. Charman, 44 N. H. 572; Clark v.
Hyman, 55 Iowa, 15; Brookings v. White, 49 Maine, 479;
Vanmeter v. Vanmeter, 3 Gratt. 148 ; Kramer v. Farmers and
Mechanics' Bank, 15 Ohio, 253; Burdett v. (7%, 8 B. Mon.
287; Jo?z<?s v. Berkshire, 15 Iowa, 248; Paine v. Benton, 32
Wis. 491.
Where the rule is held otherwise it is in consequence of
the peculiar language of the registry laws.
Messrs. Bosenthal & Pence, for the appellee :
There are two necessary elements to constitute a mortgage.
It must be a conveyance, and that must be as a security.
By this mortgage no indebtedness is secured. The note
therein described would read as follows :
"Chicago, June 11, 1872.
"I promise to pay to the order of John M. Bullock, five
years after date, with interest at the rate of ten per cent per
annum, payable semi-annually. „
1883.] Bullock v. Battenhousen. 35
Opinion of the Court.
The debt secured is the principal thing, and the mortgage
the mere incident. If the principal thing is void or inopera-
tive, so will be the incident. Lucas v. Harris, 20 111. 169 ;
Ryan v. Dunlap, 17 id. 43.
An instrument which can not operate as a mortgage as it
stands, is a nullity, and is not entitled to be recorded under
our statutes, and is not constructive notice of anything if
recorded. Schultze v. Houfes, 96 111. 335 ; Houfes v. Schultze,
2 Bradw. 196; Moore v. Hunter, 1 Gilm. 317; St. John v..
Conger, 40 111. 536; James v. Morey, 2 Cow. 310; Mcsich v.
Sunderland, 6 Cal. 315; Kerns v. Savage, 2 Watts, 77; Til-
mand v. Oswand, 12 S. & M. 265; Farmers and Merchants'
Bank v. Bronson, 14 Mich. 369 ; Gales Exrs. v. Morris, 29
N. J. Eq. 226 ; Racokdlat v. Rene, 32 Cal. 452 ; Disque v.
Wright, 49 Iowa, 538; White v. Carpenter, 2 Paige, 24S ;
Lambert v. Hall, 7 N. J. Eq. 439.
It is fraudulent per se to give a mortgage for the purpose
of securing an ascertained debt without stating the amount
thereof in the mortgage.
The spirit of our recording system requires that the record
of a mortgage should disclose, with as much certainty as the
nature of the case will admit, the real state of the incum-
brance. If a mortgage is given to secure an ascertained
debt, the amount of such debt should be stated. By omit-
ting to so state the debt the widest door is opened for fraud
of every description, and to prevent the same the law declares
such a mortgage fraudulent and void as to creditors and sub-
sequent purchasers. Metropolitan Bank v. Godfrey, 23 111.
603 ; North v. Belden, 13 Conn. 376 ; Hart v. Chalker, 14 id.
77; Pearce v. Hall, 12 Ky. 209.
Mr. Justice Scholfield delivered the opinion of the Court :
We perceive no sufficient reason for disturbing the judg-
ment of the Appellate Court. We concur with that court in
holding that under our registry laws the record of this trust
36 Bullock v. Battenhousen. [Nov.
Opinion of the Court.
deed does not charge subsequent bona fide purchasers without
actual notice with knowledge of the amount of the indebted-
ness of the promissory note set out in the bill. We concur,
also, in the main, with the reasoning expressed by that court
in its opinion, as reported in 11 Bradwell, 665.
It is true, as contended by counsel for appellant, that in
Metropolitan Ba7ik v. Godfrey, 23 111. 603, therein referred to,
the question before the court was not as to the sufficiency of
a particular description of indebtedness, as it is here, but as
to the effect of an absolute deed referring to no indebtedness ;
but what was there said may be regarded as a reason equally
cogent here. The language there was : "The spirit of our
recording system requires that the record of a mortgage
should disclose, with as much certainty as the nature of the
case will admit, the real state of the incumbrance. If a
mortgage is given to secure an ascertained debt, the amount
of that debt should be stated, and if it is intended to secure
a debt not ascertained, such data should be given respecting
it as will put any one interested in the inquiry upon the track
leading to a discovery. If it is given to secure an existing
or a future liability, the foundation of such liability should
be set forth. North v. Belden, 18 Conn. 376; Hart v. Chalker
et ah 14 id. 77."
This is peculiarly pertinent to the facts of the present case,"
and one of the authorities quoted in support of the language is
literally analogous. In Hart v. Chalker, the condition in the
mortgage, which was condemned because of the insufficiency
of the description of the debt, ran thus: "The condition of
this deed is, that whereas, said William Chalker has this day
executed his note of hand to said Hart, dated 10th of May,
1834, on demand, with interest, if said Chalker shall truly
and faithfully pay to said Hart the amount of said, note,
agreeable to the tenor thereof, then this deed to be void,
otherwise to remain in full force and effect."
1883.] Bullock v. Battenhousen. 37
Opinion of the Court.
The policy, though not the letter, of our statutes requires,
in all cases, a statement upon the record of the amount
secured. Thus, in section 11, chapter 30, Kev. Stat. 1874,
page 274, the form of mortgage there given requires the
mortgage to "recite the nature and amount of indebtedness."
And in section 14, chapter 95, Bev. Stat. 1874, page 713,
notices of sales of real estate pursuant to powers are required
to state "the amount of indebtedness the instrument was
given to secure," and "the amount claimed to be due." A
statement upon the record of the amount claimed to be due
informs all what lien is claimed. They know what they must
contest, or subject to what they must take, in subsequently
dealing with the property. It prevents secret conspiracies
between mortgagors and mortgagees as to the fact and amount
of indebtedness to the prejudice of subsequent purchasers
and creditors, by compelling them to at once make known
the real claim. In some instances, subsequent dealers with
mortgaged property could not have information from the
holders of indebtedness secured by mortgage, because they
could not be found, — as in the case of negotiable securities
running for a long time, and negotiated many times before
maturity ; and it might often be, as in the instance before
us, perilous to rely on the word of the mortgagor. Undoubt-
edly, as between mortgagor and mortgagee, and as to persons
having actual notice of the facts, both at common law and
under our statute, a deed absolute on its face may be held to
be a mortgage ; but such cases are totally unaffected by our
registry laws, and can not therefore have the slightest analogy
to the present case.
It may also be well to observe that the present case is in
nowise analogous to cases wherein the debt is described by
reference to another instrument. In those cases there is only
the labor of going to the other instrument, where full and
reliable information can be attained. It is fixed, and beyond
evasion or perversion. But that is not the case where the
38 Bullock v. Battenhousen. [Nov.
Opinion of the Court.
reference is to an individual whose interest may be to mis-
represent the truth, or who may not, with reasonable efforts,
be found. A note for one amount as well as for another
will answer the description here, and this note might have
been lawfully negotiated and transferred many times before
maturity, and its holder then not have been traceable except
at a labor and expense beyond any benefit to be derived from
the knowledge he could impart. To hold this sufficient would,
in cases that may readily and not unreasonably be conceived,
practically prohibit subsequent parties from having anything
to do with the property.
Babcock v. Lisk, 57 111. 327, and Farrar v. Payne, 73 id.
82, cited and relied upon by counsel for appellant, are clearly
distinguishable in principle from the present case. In the
first named case it was simply a question of construction
whether $500, named as the consideration for executing the
mortgage, was a part of the sum secured by the mortgage,
and it was held that it was, — that by proper construction of
the language employed the mortgage was expressly to secure
the payment of this sum, and also the sum of $70, evidenced
by a promissory note. In the other case, the amount of the
note ($654) was given, and the only objection was that it
was not stated when it would become clue, as to which, quite
obviously, considerations different from those applicable to a
failure to state the amount of indebtedness would be appli-
cable.
The burden was upon appellant to prove actual notice of
the amount of his claim, if that was relied upon, at the time
Battenhousen purchased. Without discussing the question
attempted to be raised in argument by counsel for appellant,
whether the evidence of Martha Battenhousen was admissible,
we are clear no actual notice was proved, and that Batten-
housen is shown to have been a purchaser in good faith, for
value. And we are also of opinion that the record does not
disclose sufficient evidence of subsequent actual knowledge
1883.] Davis v. Hamlin. 39
Syllabus.
at a time when he could have legally avoided making any of
the back payments. There is evidence that there was not
actual notice of appellant's claim until the service of sum-
mons in this case, and the proof shows the notes for the
deferred payments were assigned before maturity.
The judgment is affirmed.
Judgment affirmed.
William J. Davis
v.
John A. Hamlin.
Filed at Ottawa November 20, 1883.
1. Agency — teust — duty of agent in regard to principal and his busi-
ness. In the employment of an agent the principal bargains for the disin-
terested skill, diligence and zeal of the agent for his own exclusive benefit.
There rests upon one becoming agent the duty of fidelity to his employers
interest, and of acting for the furtherance and advancement of the business
in which he engages, and not in its injury.
2. Where a confidential agent of one having a lease of a theatre, who, from
his position, was well acquainted with the profits of his principal in the use
of the building, and who knew, some months before the old lease expired,
that the latter was desirous of renewing his lease, offered privately to lease
the theatre of the owner, proposing to give a larger rental than was reserved
in the old lease, and denied to his principal that he was competing with him
for the lease, but in fact did procure a lease to be made to himself, it was
held, that the benefit of such lease a court of equity would hold to inure to
his principal, and that the agent would be held to hold the same as a trustee
for his principal.
3. Courts of equity recognize a reasonable expectation of a tenant of a
renewal of his lease as an interest of value, and hold that the act of an agent
in the management of the lessee's business, in interfering with and disap-
pointing such expectation by procuring the lease to himself, is inconsistent
with the fidelity which the agent owTes to the business of his principal, and a
court of equity will give the principal the benefit of the new lease.
4. In applying this rule the nature of the relation is to be regarded, and
not the designation of the one holding the relation. It is applied not only to
persons standing in a direct fiduciary relation toward others, such as trustees,
40 Davis v. Hamlin. [Nov.
Statement of the case.
executors, attorneys and agents, but also to those who occupy any position
out of which a similar duty ought, in equity and good conscience, to arise.
5. The knowledge which one acquires as trustee or confidential agent, is
of itself a sufficient ground of disqualification, and of requiring that such
knowledge shall not be allowed to be used for his own benefit to the injury
of the trust, or in violation thereof.
6. Where one person is placed in such relation to another, by the act or
consent of that other, or the act of a third person, or of the law, so that he
becomes interested for him or with him in any subject of property or busi-
ness, he will in equity be prohibited from acquiring rights in that subject
antagonistic to the person with whose interest he has been associated.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Circuit Court of Cook
county; the Hon. M. F. Tuley, Judge, presiding.
This was a bill in equity, brought by John A. Hamlin,
against William J. Davis, seeking to have the latter declared
to be a trustee for the former of a certain lease of the Grand
Opera House in Chicago, which Davis had obtained for him-
self from William Borden. Upon the hearing the circuit
court decreed the relief prayed for. The decree was affirmed
by the Appellate Court for the First District, and the defend-
ant appealed to this court.
The facts appearing from the evidenccare, that Hamlin
was the lessee and manager of the theatre known as the
Grand Opera House, in the city of Chicago, and for some ten
years had occupied the premises, first as owner, and then as
lessee. After the Chicago fire, in 1871, he purchased the
lots and built thereon the building, and has used it since
that time as a place of amusement. He expended in its con-
struction and improvement over $75,000: Mortgages had
been given upon the lots, which were finally foreclosed, and
he lost the title to the lots. Subsequently he became a lessee,
and contracted with William Borden, who was then the owner
of the premises, that the latter should fit up the house for a
first-class opera house, and that he would pay him a rental,
after it was finished, amounting to about $18,000 a year.
1883.] Davis v. Hamlin. 41
Statement of the case.
The building being completed about the month of August,
1880, Hamlin entered into the possession, and opened it as
a place for first-class entertainments. He had a lease which
would expire April 23, 1883, and it was his intention to con-
tinue permanently in this building in the amusement busi-
ness, and at the expiration of his lease to renew it. During
the first year after opening his new opera house, about the
first of September, 1880, he cleared, over and above all ex-
penses, the sum of $7000, and the next year, from September,
1881, to September, 1882, $24,000. When he was about to
open in September, 1880, he secured the services of William
J. Davis, the defendant, as a general business manager. The
evidence shows that the duties of a manager or assistant
manager are to correspond with companies, operas, troupes,
etc., for engagements of from one to four weeks, according
to their acceptableness, and so arrange the engagements that
they will follow one another in future months without loss of
time. In making these engagements it is necessary to show
the exact expense of the house each night, including rent,
and the custom of business is to make a settlement between
the proprietor of the theatre and the manager of the attrac-
tion, and divide the money every night. Davis, about Sep-
tember, 1880, entered upon the discharge of his duties, and
from that time until the making of the lease in question con-
tinued in the management of the theatre. For this service
he received $50 per week as a fixed salary, and ten per cent
of the profits.
^Respecting the renewal of the lease there is but the uncon-
tradicted testimony of Davis and Hamlin themselves. Davis
testifies the first negotiation he had with Borden was about
December 1, 1881. He went to Borden for the purpose of
purchasing the theatre, and offered $200,000 for it. Borden
did not care to sell, and inquired what rent Davis would be
willing to pay, and Davis said, ten per cent on Borden's valu-
ation of it, if it did not run above $225,000. Borden asked
42 Davis v. Hamlin. [Nov.
Statement of the case.
Davis if he would give that rent, and Davis said he would, if
there was any use of his making an offer for it, — if the theatre
was in the market. Borden said he was going to New York,
and would see Davis on his return. Davis says he next saw
Borden on the 19th of January, 18S2, when he called upon
Borden in Chicago in response to a note from Borden to do
so. Borden then inquired of Davis what he would give for the
lease of the theatre. Davis told him. Borden did not accept
the offer, but asked Davis to see him another day, and after
further negotiation, Borden, on the 24th of January, 1882,
executed to Davis a lease of the theatre for the term of ten
years, at the rental of $22,500 per year. Davis says he told
Borden, at the interview on January 19, that Hamlin would
pay him nearly double what Davis offered for the theatre,
because Hamlin had told him (Davis) that he would pay
$40,000 a year for the theatre, and sink $10,000 from his
private income, before he would surrender it, but Borden said
he thought Hamlin was "blowing."
Hamlin testifies that soon after the opening, in 18 SO, he
made application to Borden for a lease to him and one Nun-
nemacher for twenty years, which Borden declined, then, to
give ; that the next talk he had with Borden was in New York,
between the middle of December, 1881, and the middle of
January, 1882, when he told Borden he would take a lease for
any term of years, and would pay all that it was possible for
any prudent business man to pay, and would pay as much
rent as anybody. Borden said he would talk it over the
next week in Chicago. Subsequently he had two interviews
in Chicago with Borden on the subject. At the second one
he offered $20,000 per year rent, but Borden declined to take
it, saying he must see the other parties first ; that there were
two persons he had offers from ; that they were managers,
and Chicago men. Hamlin testifies that he went immedi-
ately to Davis, and inquired of him if he was attempting to
secure a lease of the Grand Opera House, and Davis answered
1883.] Davis v. Hamlin. 43
Brief for the Appellant.
no, — that he was not. He said he then told Davis what he
had just learned from Borden, and that he would pay double
the value of the theatre rather than anybody else should
have it. Davis said to him : "I would not give an extrava-
gant price for it, if I were you ; I would not give a dollar
more than it is worth." The parties agree as to this inter-
view and conversation, differing only as to its date, Davis
testifying that it was on the 17th, and Hamlin that it was
on the 23d of January, 1882.
The evidence was that a theatre well managed has a good
will, of value, attached to it ; that there were only four first-
class theatres in Chicago, including the Grand Opera House,
and there was no probability that Hamlin could get another
theatre without building a new one.
Mr. Egbert Jamieson, and Mr. L. W. Perce, for the ap-
pellant :
The relation of principal and agent did not exist between
Hamlin and Davis in regard to the subject matter of renew-
ing the lease. Fairman v. Bavin, 29 111. 75.
The relation of master and servant, and that of trustee and
cestui que trust, are not identical, nor does the one necessarily
involve the other. The relation of employer and employe is
not a confidential one. Story's Eq. Jur. sec. 1195; Cook v.
Fountain, 3 Swanst. 591; Wharton on Agency, sec. 19;
Bigelow on Fraud, 231; Paley on Agency, 12; Beep River
Mining Co. v. Fox, 4 Ind. 61.
The application of the principles governing the relation of
trustee and cestui que trust is limited to dealings with the
trust estate. In all matters not connected with the subject
of the trust the parties are fully competent to deal with each
other, with third parties or strangers. Knight v. Majoribanks,
2 Mac. & G. 10; Montesquiea v. Sandys, 18 Ves. 308; Crane
v. Lord Allen, 2 Dow, 289; Ex parte James, 8 Ves. 352; Gal-
44 Davis v. Hamlin. [Nov.
Brief for the Appellee.
braith v. Elder, 8 Watts, 81 ; McDonald v. Fithian, 1 Gilm.
269 ; Kennedy v. Keating, 34 Mo. 25.
In every case reported in this State where parties have
been declared trustees, the rule contended for is exemplified.
Every case connects the trustee with the subject matter of
the trust by directly and distinctly charging him with a duty
in connection with such subject matter. Casey v. Casey, 14
111. 112; Pensonneau v. Blakely, id. 15; Wickliff v. Robinson,
18 id. 145 ; Hitchcock v. Watson, id. 289 ; Dennis v. McCagg,
32 id. 429 ; Morris v. Taylor, 49 id. 17 ; Kerfoot v. Hyman, 52
id. 512; Cotton v. Holliday, 59 id. 176; Mason v. Bauman,
62 id. 76 ; Ely v. Hanford, 65 id. 267 ; Hughes v. Washington,
72 id. 84; Tewksbury v. Spruance, 75 id. 187; Eldridge v.
IFaZ&er, 80 id. 270; Francis v. Jier/cer, 85 id. 190.
When the party is not connected in a trust capacity with
the subject matter of the trust, he can not be held as a
trustee. Fairman v. Bavin, 29 111. 75 ; Merryman v. David,
31 id. 404.
A person holding a confidential position is not incapaci-
tated thereby in regard to matters in respect to which he
has no duty to perform. Edwards v. Meyrick, 2 Hare, 60.
The so-called tenant right of renewal confers no positive
interest, either vested or contingent. It is a mere naked pos-
sibility, depending solely on the caprice of the lessor. A right
of renewal must be the result of express contract. Taylor
on Landlord and Tenant, sec. 332. note 2.
Mr. Leonard Swett, and Messrs. Quigg & Tuthill, for
the appellee :
Any one who acts representatively, or whose office is to
advise or operate, not for himself, but for others, is a trustee.
1 Lead. Cases in Equity, 238; Bigelow on Frauds, 190.
Wherever there is a relation which puts one party in the
power of the other, a fiduciary relation exists. Evans on
Agency, 256; Kerr on Fraud and Mistake, 182, 183.
1883.] Davis v. Hamlin. 45
Opinion of the Court.
In the employment of an agent the principal bargains for
the disinterested skill, diligence and zeal of the agent for his
own exclusive benefit, and whenever an agent is employed
the principal is entitled to the intelligence, experience, care,
skill and diligence of the agent, without any conflicting in-
terests on his part prejudicial to the rights of such principal.
Wait's Actions and Defences, title, "Agency," sec. 12, p. 245 ;
Hilliard on Vendors, 369; Story on Agency, sees. 210, 211.
A person availing himself of a position of confidence to
obtain an advantage, will not be permitted to retain it. Bisp-
ham's Equity, sec. 232 ; 1 Story's Eq. Jur. sec. 333.
A trustee must not put himself in a position which may
have a tendency to injure the trust or interfere with his
duties, and the knowledge which he acquired as trustee is
of itself a sufficient ground of disqualification. Hamilton v.
Wright, 1 Bell's App. C. 591 ; Keech v. Sandford, 1 Lead.
Cases in Eq. 48.
Duty of agent to give his principal timely notice of every
fact or thing that may make it necessary for him to take
measures for his security : Devall v. Burbridge, 4 Watts &
S. 305 ; Brown v. Arrot, 6 id. 416 ; Bartholomew v. Leach,
7 Watts, 172; Clark & Co. v. Bank of Wheeling, 17 Pa. St.
322.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
Under the facts in this case the only question arising is,
whether Hamlin, by reason of Davis' agency and confidential
relation to him, is entitled to the benefit of the lease executed
by Borden to Davis.
In the employment of an agent the principal bargains for
the disinterested skill, diligence and zeal of the agent for his
own exclusive benefit. Upon entering into the employ of
Hamlin, there rested upon Davis the duty of fidelity to his
employer's interest, and of acting for the furtherance and
46 Davis v. Hamlin. [Nov.
Opinion of the Court.
advancement of the business in which he was engaged, and
not in its injury. We view the whole conduct of Davis in
regard to the lease in question as violative of the duty of the
relation in which he stood toward Hamlin. His first offer to
rent the premises from Borden, about December, 1881, was
an act hostile to the interest of his employer. He offered
Borden a rent which was nearly $5000 in excess of the rent
which Hamlin was then paying. Borden knew that this was
an offer made upon an exact knowledge of the profits of the
business, which Davis, from his employment, had peculiar
means of knowing, and the natural effect would be to cause
Hamlin to pay an enhanced rent when he should come to ask
for a renewal of his lease. Davis violated the duty of his
relation in concealing from Hamlin that he was attempting
to get the lease. Davis excuses his denial to Hamlin of such
attempt by saying that this was on January 17, and that it
was true that at that time he was not making such an attempt,
but had given it over, not up to that time having received
any response from Borden to Davis' offer to rent, made on
December 1, and that he was then, on January 17, making,
or had made, preparations to go into another business. Tak-
ing this to be so, we find Davis only two days later, January
19, in the act of negotiation for the lease, and making an
offer to Borden for the lease, which the latter took time to
consider. Now, Davis knew that it was of vital importance
to the interest of Hamlin that the latter should get a renewal
of his lease ; that Hamlin was most anxious to ascertain
whether Davis — who alone, with Hamlin, had exact knowl-
edge of the profits of the business — was in competition for
the lease ; and from Davis, only two days before, denying
that he was competing for the lease, Davis knew, on January
19, that the belief was resting on Hamlin's mind, from what
Davis had told him two days before, that Davis was not a
competitor for the lease. Under these circumstances Davis
ought to have disabused the mind of Hamlin of the impres-
1883.] Davis v. Hamlin. 47
Opinion of the Court.
sion, which Davis had caused, that the latter was not attempt-
ing to get the lease, and have informed Hamlin of what the
fact was, to give to the latter the opportunity to act accord-
ingly, and Davis' not doing so was a breach of good faith
toward his employer.
The obtaining of the lease by Davis amounted to a virtual
destruction of his employer's whole business at the termina-
tion of the old lease, under which the latter was holding. By
some ten years of labor Hamlin had built up a business of
a very profitable character. There was a good will attached
to it, which was valuable. Hamlin was intending to make it
a lifetime business. Sustaining this lease to Davis, at the
end of Hamlin's lease, April 16, 1883, all this business would
come to an end, and pass, good will and all, from Hamlin,
the employer, into the hands of Davis, the employe. And
this would have been accomplished by the means of a renewal
lease obtained by a confidential agent, in violation of the
duty of his relation, and acquired, presumably, because of
peculiar means of knowledge of the profitableness of the
business, afforded him by the confidential position in which
he was employed. A personal benefit thus obtained by an
agent, equity will hold to inure for the benefit of the prin-
cipal.
Public policy, we think, must condemn such a transaction
as that in question. To sanction it would hold out a tempta-
tion to the agent to speculate off from his principal to the
latter's detriment. Davis very well knew that his employer
would be willing to pay a much higher rent than that at which
he obtained the lease, and that he could dispose of the lease
to Hamlin at a large profit to himself, and such means of
knowledge was derived from his position as agent. If a man-
ager of a business were allowed to obtain such a lease for
himself, there would be laid before him the inducement to
produce in the mind of his principal an under-estimate of
the value of the lease, and to that end, may be, to mis-
48 Davis v. Hamlin. [Nov.
Opinion of the Court.
manage so as to reduce profits, in order that he might more
easily acquire the lease for himself.
It is contended by appellant's counsel that the rule we
apply, which holds an agent to be a trustee for his principal,
has no application to the case at bar, because Davis was not
an agent to obtain a renewal of the lease, and was not charged
with any duty in regard thereto ; that his was but the specific
employment to engage amusements for the theatre, and that
he was an agent only within the scope of that employment ;
that Hamlin having a lease which would expire April 16,
1883, had no right or interest in the property thereafter, and
that Davis, in negotiating for the lease, did not deal with any
property wherein Hamlin had any interest, and that such
property was not the subject matter of any trust between
them. Although the're was here no right of renewal of the
lease in the tenant, he had a reasonable expectation of its
renewal, which courts of equity have recognized as an interest
of value, secretly to interfere with which, and disappoint, by
an agent in the management of the lessee's business, we
regard as inconsistent with the fidelity which the agent owes
to the business of his principal. There was the good will of
the business, which belonged to the business as a portion of
it, and this the agent got for himself.
It is further argued that the relation here between Hamlin
and Davis was that of master and servant, or employer and
employe, and that the rule has never been applied to that
relation as a class, and that the classes coming within that
doctrine are embraced within the list of denned confidential
relations, such as trustee and beneficiary, guardian and ward,
etc. The subject is not comprehended within any such nar-
rowness of view as is presented on appellant's part. In
applying the rule, it is the nature of the relation which is to
be regarded, and not the designation of the one filling the
relation. Of this principle' Bispham says : "The rule under
discussion applies not only to persons standing in a direct
1883.] Davis v. Hamlin. 49
Opinion of the Court.
fiduciary relation towards others, such as trustees, executors,
attorneys and agents, but also to those who occupy any posi-
tion out of which a similar duty ought, in equity and good
morals, to arise." (Bispham's Equity, sec. 93.) In Greenlaw
v. King, 5 Jur. 19, Lord Chancellor Cottenham, speaking of
this doctrine, says: "The rule was one of universal appli-
cation, affecting all persons who came within its principle,
which was, that no party could be permitted to purchase an
interest when he had a duty to perform which was incon-
sistent with the character of a purchaser." "It is the duty
of a trustee, " said Lord Brougham, in Hamilton v. Wright, 9
CI. & Fin. Ill, "to do nothing for the impairing or destruc-
tion of the trust, nor to place himself in a position incon-
sistent with the interests of the trust." And on page 124:
"Nor is it only on account of the conflict between his inter-
ests and his duty to the trust that such transactions are for-
bidden. The knowledge which he acquires as trustee is, of
itself, sufficient ground of disqualification, and of requiring
that such knowledge shall not be capable of being used for
his own benefit to injure the trust." Although this was said
of a trustee, we think it may be equally said here with respect
to Davis and the business which he was employed to manage.
The rule we apply, as to its broadness in extent, is aptly
expressed in the American note to Keech v. Sandford, 1 Lead.
Cases in Eq. 53, as follows : "Wherever one person is placed
in such relation to another, by the act or consent of that
other, or the act of a third person, or of the law, that he
becomes interested for him, or interested with him, in any
subject of property or business, he is prohibited from acquir-
ing rights in that subject antagonistic to the person with
whose interests he has become associated."
The views which we have above expressed we believe to be
in accordance with the well established principles of equitable
jurisprudence. See Derail v. Burbridge, 4 Watts & S. 305 ;
Hill v. Frazier, 22 Pa. St. 320 ; Fairman v. Bavin, 29 111. 75 ;
4—108 III.
50 Gudgel, Admk. v. Kitterman et al. [Nov.
Syllabus.
Gilman, Clinton and Springfield R. R. Co. v. Kelly, 77 id. 426 ;
Bennett v. Vansyckle, 4 Duer, 462 ; Gillenwaters v. Miller, 49
Miss. 150; Grmnley v. Webb, 44 Mo. 446.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed.
James Gudgel, Admr.
v.
Michael Kitteeman et at.
Filed at Ottawa November 20, 18S3.
1. Fraudulent conveyance — when grantor retains ample means to
pay all his liabilities. A person, in 1868, sold and conveyed to his two
younger sons some six hundred acres of land, in consideration that they
should pay to their sisters $10,006, and to a brother $500, and support, main-
tain and take care of their parents during their lives, the grantor at the time
retaining other land more than sufficient to pay the only debt he then was
liable to pay. The grantor placed the deed for the lands conveyed in the
hands of another son, to be held by him, and delivered on payment being
made to the grantees' sisters. Afterwards, in 1878, this deed was taken up
and destroyed, and separate deeds made to each of said former grantees for
his part of the land, according to a division made of the same, and they gave
their notes to their sisters for the balance due them, and a bond to their
father, conditioned for his and his wife's support, etc., and it appeared that,
the two sons (the grantees) took possession of the premises in 1888, and
retained the same ever since, making valuable improvements thereon: Held,
that the last deeds, made in 1878, in fulfillment of the agreement of 1868,
were not fraudulent as against the debt on which the father was liable in
1868.
2. Where a debtor retains ample and abundant means to discharge and
satisfy all his liabilities, he may, on the sale of other property, direct that the
purchase money be paid to whom he pleases; and when he directs it to be
paid to his daughters, part of which is so paid and notes given them for the
residue, the debtor will have no interest in such notes, or in the money rep-
resented by them, and they can not be reached by his creditors.
3. Specific performance — when with relation back. Where two sons
agree with their father, in consideration of the sale of land to them, to sup-
port him and his wife during their lives, and to pay certain sums of money to
1883.] Gudgel, Admr. v. Kitterman et al. 51
Brief for the Appellant.
a brother and their sisters, at certain specified times, under which contract
they go into possession of the lands, pay all taxes, and make valuable im-
provements thereon, support their parents, and pay the money agreed to be
paid as fast as required under the agreement, a court of equity will enforce
the contract, even if a deed made and left as an escrow fails to pass the title;
and where such contract is enforced by a conveyance, the deed will have rela-
tion back to the time when the contract was made.
4. Paeties — chancery — to set aside deed as fraudulent as to creditors.
Where a father conveys a tract of land to one son for such son and four other
sons, to be divided between them after a survey of the premises is made, on
a creditor's bill against the grantee alone, the other sons having such interest
not being parties, no decree subjecting such land to the payment of a judg-
ment against the grantor can be rendered, for want of necessary parties to
the bill.
Appeal from the Appellate Court for the Second District ;
— heard in that court on appeal from the Circuit Court of
Bureau county; the Hon. Francis Goodspeed, Judge, pre-
siding.
Messrs. Kendall & Love joy, and Mr. E. S. Leland, for
the appellant :
The deed of 1868 never took effect for want of delivery.
The conditions precedent to its delivery never had been per-
formed, and it was void as against creditors. Stone v. Duvall,
77 111. 475 ; Furness v. Williams, Admr. 11 id. 229 ; Stanley
v. Valentine, 79. id. 544 ; Skinner v. Baker, id. 496 ; Hoig et al.
v. Adrian College, 83 id. 267.
Delivery of a deed, to be effectual, must be with the con-
sent of the grantor. Wormley v. Wormley, 98 111. 544 ; Wig-
gins v. Lush, 12 id. 132.
A voluntary conveyance without consideration, intended
as a donation of land, placed in the hands of a custodian,
may be withdrawn by the grantor at any time before delivery,
and if left for delivery upon certain conditions, the custodian
is not the judge of whether the conditions have been per-
formed, and he has no right to deliver the same until the
donor is satisfied. Hoig et al. v. Adrian College, 83 111. 267.
52 Gudgel, Adme. v. Kitterman et al. [Nov.
Brief for the Appellees.
A debtor can not, as against his creditors, convey all his
property to another to secure his future support and that of
his wife. Such conveyance is fraudulent in law as to cred-
itors, although it may be good as between the parties thereto.
Annis v. Bonar, 86 111. 128; Stevens v. Dillman et al. 86 id.
233 ; Patterson v. McKinney, 97 id. 41 ; Tunison v. Chamblin,
88 id. 378 ; Moore v. Wood, 100 id. 451 ; Crawford v. Logan,
97 id. 396.
A voluntary conveyance to a wife or child, when the donor
is in embarrassed circumstances, is fraudulent as to preexist-
ing creditors, even though the party retains estate nominally
in value equal, or more than equal, to all his indebtedness,
when the event shows that the property retained is, in fact,
not sufficient to discharge his liabilities. Patterson v. McKin-
ney, 97 111. 41.
Messrs. Farwell & Warren, for the appellees :
The deeds of 1878 are to be taken as relating back to the
time of the making of the old deed in 1868, and treated as if
then made. Patterson v. McKinney, 97 111. 41.
The deeds were not voluntary, so the question is not one
of a gift. The support of the parents and the unmarried
daughters, and the payment of the money to Henry and the
sisters, establish a case of sale with all the elements of a
valuable consideration. Mathews v. Jordan, 88 111. 602 ;
Bright v. Bright, 41 id. 97; Spear v. Griffith, 86 id. 552;
Jefferson v. Jefferson, 96 id. 551.
Though the agreement of 1868 had been by parol, without
any deed, yet as defendants, John and George, had entered
into possession under it, paid the $500 to Henry, paid to
the girls large sums, supported the parents and unmarried
daughters, and made valuable improvements, they could have
compelled performance, and it was not in the power of
Michael Kitterman to annul the agreement. Bright v. Bright,
41 111. 97; Kurtz v. Hibner, 55 id. 514; Wood v. Thomly, 58
1883.] Gudgel, Admr. v. Kitterman et al. 53
Opinion of the Court.
id. 464; Langston v. Bates, 84 id. 524; Spear v. Griffith, 86
id. 552.
If we were to treat the matter as a gift of the lands, still
the conveyances must be upheld. A gift from a father to
children is good against even existing creditors, if he retains
sufficient wherewith to pay his debts. Moritz v. Hoffman, 35
111. 553; Emerson v. Bemis, 69 id. 537; Mathews v. Jordan,
88 id. 602; Patterson v. McKinneij, 97 id. 41.
In order to impeach such conveyance it devolves upon
the party attacking it to show that the father was at the time
in failing circumstances, embarrassed or insolvent, or that it
was made with the fraudulent intent to defeat existing credit-
ors, or with a view of contracting future debts. See authori-
ties last cited.
The delivery of the deed to Kobert was sufficient to pass
the title and place the same beyond the grantor's control.
The gift to the girls, if one, was executed, and could not be
recalled.
Mr. Justice Craig delivered the opinion of the Court :
This was a bill in equity, brought by appellant, to set aside
two certain deeds, one made by Michael Kitterman to John
Kitterman, and the other made by Michael Kitterman to
George Kitterman, conveying certain lands in Bureau county,
and to subject the lands to the payment of a judgment.
Appellant obtained judgment in the circuit court of Bureau
county against Chauncey A. Dean and Michael Kitterman,
on the 13th day of September, 18S0, for the sum of $1688.49.
It is alleged in the bill that the deeds were void as against
appellant, who was a creditor of Michael Kitterman at the
time they were executed.
It appears from the evidence that the note upon which
the judgment was rendered was executed on the 14th day of
June, 1866, signed by Chauncey A. Dean and Michael Kit-
terman ; that Dean was the principal debtor, and Kitterman
54 Gudgel. Admr. v. Kitterman et al. [Nov.
Opinion of the Court.
was surety. Kitterman was a farmer, and had been many
years a resident of Bureau county, and was, at the time his
evidence was taken, eighty-two years old. He had ten chil-
dren— six sons and four daughters. As his older sons became
of age he gave them land, and they commenced business for
themselves. When George and John became of age, Kitter-
man owned some seven or eight hundred acres of land. In
1SG8 he made an arrangement with these two sons, George
and John, under which he conveyed to them, jointly, some
six hundred acres of land, including his home place, and
they agreed to support him and his wife during their natural
lives, and pay his four daughters $10,000, and pay Henry, a
brother, $500. This deed was never recorded, but it was
delivered to Eobert Kitterman, to be held by him until the
money was paid to the daughters, as was specified in the
agreement. The two sons, John and George, took possession
of the lands embraced in the deed, and made valuable im-
provements thereon, and from time to time made payments
to the daughters. They worked the lands together until
1876, when they disagreed, and two other brothers were
called on to divide the lands between them, after which the
lands were occupied by each as divided, the old deed remain-
ing in the hands of Eobert, as before. Thus matters stood
until March 19, 1878, when the old deed was destroyed, and
Kitterman and his wife conveyed to George and John the
lands which they had occupied under the old deed, and they
gave a bond binding themselves for the support of their father
and mother, and also executed notes payable to the daughters
for the balance of the $10,000, which had not before that
time been paid. The bill in this case was filed to set aside
the deeds last named.
The execution of the deed made by Michael Kitterman and
wife to John and George Kitterman, in 1868, was proven by
each witness who testified in the case. That deed, as is well
established by the evidence, was delivered to Eobert Kitter-
1883.] Gudgel, Admr. v. Kitterman et al. 55
Opinion of the Court.
man, and he testified that his father gave him the deed,
"and told me he wanted I should keep the deed until the
boys paid the girls so much money." Indeed, there seems
to be no substantial dispute on this point, and it may be
regarded as settled by the evidence that the deed was deliv-
ered to Eobert Kitterman, to be held by him until such time
as the grantees therein paid to their sisters $10,000, in time
and manner as agreed upon between them and the grantor.
At the time this deed was made, Michael Kitterman was not
insolvent. Indeed, it does not appear that he was indebted
to any person except complainant on the note he had signed
with Dean, and he retained a farm of one hundred and sixty
acres of land, near Providence, which he sold, in 1869, for
$6000, so that the property retained when the deed was made
to his sons, in 1868, was ample to pay all liabilities. If,
then, the contract entered into in 1868, between Michael Kit-
terman and his two sons, was sufficient to transfer the prop-
erty from him to them, the transaction can not be impeached
by this proceeding.
It is, however, insisted by complainant that the deed made
in 1868, by Michael Kitterman, to his sons John and George,
never took effect as a conveyance ; that it was an escrow in
the keeping of Eobert Kitterman, until destroyed by the direc-
tion of the grantor, in 1878, when the new deeds were made.
It may be true that where a deed is delivered to a third party,
to be held by him in escrow until the grantee shall perform
certain conditions agreed upon between the grantor and
grantee, the strict legal title does not, under such a transac-
tion, pass to the grantee named in the deed until the condi-
tions have been performed ; but that rule of law does not, in
our opinion, impair the validity of this transaction. Here,
the grantees named in the deed agreed to support Michael
Kitterman and his wife during their life, and agreed to pay
certain sums of money to a brother and their sisters, at cer-
tain specified times, in consideration of which they were to
56 Gudgel, Admr. v. Kitterman et al. [Nov.
Opinion of the Court.
have these lands. Under this contract they went into the
possession of the lands. They have paid all taxes, made
valuable improvements, supported the grantors, and paid the
money agreed to be paid, as fast as the same was required to
be paid under the contract. Now, if it be true the deed did
not strictly pass the legal title, yet this was such a contract
as might be enforced in a court of equity, and when enforced
by a decree requiring a conveyance, the deed would have
relation back to the time the contract was made between the
parties. Patterson v. McKinney, 97 111. 45, in principle sus-
tains this view. The fact that the deed made in 1868 was
taken up and destroyed in 1878, and a separate deed made
to each of the sons, does not, in equity, affect the rights of
the sons. The deeds made in 1878 were but a fulfillment of
the contract made in 1868 between Michael Kitterman and
his sons, under which they went into possession of the lands
in 1868, and performed their contract as purchasers, and the
deeds of 1878 must have relation back to the date of the
original contract ; and as Kitterman then retained abund-
ance of property to pay his debts, the transaction can not be
regarded as fraudulent.
It appears from the testimony that a tract of land, consist-
ing of seventy acres off the north end of the west half of the
south-east quarter of section 6, town 15 north, range 9 east,
was not included in the deed made in 1868, but it was em-
braced in the deed made to George Kitterman in 1878, and
as Michael Kitterman retained no property to pay his debts
after the making of this deed, it is contended that this land
is liable to be subjected to the payment of the judgment.
There is but little testimony in the record in regard to this
tract of land. The controversy in the circuit court seems to
have been chiefly over the other lands. The answer sets up
that this tract had been sold by Michael Kitterman to his
sons, Kobert, Henry, Christopher and William Kitterman,
before the deed was made to George, and that they were in
18S3.] Gudgel, Admr. v. Kitterman et al. 57
Opinion of the Court.
the possession thereof, and the deed was made to George so
that he could convey to each his respective portion of the
land when they should agree upon a division. The only
evidence in the record bearing upon this tract that we find,
is that of John Kitterman, who says : "The last deed to
George includes land not in the first deed, because the boys
had had such land for years, but separate deeds were never
made, for the reason it was not surveyed. It was to be sur-
veyed, and George was to make separate deeds to each of the
boys." Whether this tract of land was disposed of to Kobert,
Henry, Christopher and William at such a time and under
such circumstances as would render the transaction fraudu-
lent as against complainant, is a question which can not be
determined here. The record discloses that Kobert, Henry,
Christopher and William had an interest in the land, and as
they were not parties to the bill the court could not properly
render a decree subjecting the land to the payment of the
judgment.
It is finally urged, that complainant is entitled to a decree
against John and George Kitterman for so much of the money
represented in the notes given by them to their sisters as will
satisfy his judgment, because the money represented by the
notes is an intended gift, and not good as against the rights
of complainant. The bill was not framed with a view to
reach assets of this character ; but if it was, under the facts
of this case it could not be maintained. When Michael Kitter-
man, in 1868, sold these lands to his two sons, he had a right,
as he then retained ample property to pay his debts, to direct
the consideration which they were to pay for the lands to be
paid to any person or persons he might see fit. He decided
that $10,000 should be paid to his daughters, and the two
sons subsequently paid to them a portion of the amount,
and gave their promissory notes, payable to the respective
daughters, for the balance. After these notes were given,
payable to the daughters, and placed in their hands, or in
58 Tyler et al. v. Mass. Mutual Ins. Co. [Nov.
Syllabus.
the hands of a third party subject to their order, we do not
think Michael Kitterman had any interest in the notes or the
money represented by them, and they were in no manner
subject to his control, or liable to be reached by complainant,
who was his creditor. On the other hand, the notes became
the absolute property of the daughters of Michael Kitterman,
to whom they were payable.
After a careful consideration of all the facts presented by
the record we perceive no error in the decree of the circuit
court, and the judgment of the Appellate Court will be
affirmed.
Judgment affirmed.
James E. Tyler et al.
v.
Massachusetts Mutual Life Insurance Company et al.
Filed at Ottawa November 20, 1883.
1. Trust deed— notice of sale under several trust deeds, one notice
sufficient. Where a party gave three deeds of trust, each on a different tract
of land, to secure three notes, and the trustee, on default, advertises that he
will sell under each trust deed the land described therein, in one notice, the
notice will be good, and the sales made separately will not be set aside for
want of separate notices.
2. Same — form of trustee's deed when grantor has parted with his
equity of redemption. Where a party, after executing a trust deed to secure
the payment of money, conveys his equity of redemption, and the trustee
sells the premises, it is not essential that the deed made by the trustee shall
purport to convey the interest of the assigns of the grantor. A recital that
the trustee conveys "all the estate, right, title, interest, property, claim and
demand whatsoever, both in law and in equity, of the said A B," the grantor,
is sufficient to pass all the title and cut off the equity of redemption.
3. Same — sale under, not set aside for usury. If the maker of a deed
of trust, and his subsequent incumbrancer, permit a sale of the premises to
be made by the trustee for the principal, and usury included, they will be
estopped from afterward insisting on usury to defeat the sale. By permitting
the sale they will be regarded as assenting to it and the payment of the usury.
1883.] Tyler et al. v. Mass. Mutual Ins. Co. 59
Brief for the Appellants.
Appeal from the Circuit Court of Cook county ; the Hon.
T. A. Mohan, Judge, presiding.
Messrs. Bisbee, Ahrens & Decker, for the appellants :
The sale and trustee's deed made under the Eappleye trust
deed are void, because the notice of such sale and the sale
thereunder were irregular, informal and insufficient. Marsh
v. Norton, 75 111. 621.
The trustee's deed conveys only the interest of Guyton and
wife and the trustee — not the interest of Guyton's assigns.
The alleged default in the payment of interest, upon the
ground of which the power of sale was invoked, did not exist
because there was no interest due, and therefore the sale is
void.
The requirement that the borrower should take a life insur-
ance policy in connection with the loan, and as a condition
upon which the loan was granted, the highest rate of interest
allowed by law having already been reserved in the notes,
made the loan usurious, and prohibited the company from
collecting any interest whatever. Missouri Valley Life Ins.
Co. v. Kittle, 2 Fed. Kep. 113; Same case, 1 McCrary, 231;
National Life Ins. Co. v. Harvey, 7 Fed. Kep. 805.
Eequiring the borrower to pay agents' commissions consti-
tutes usury. Payne v. Newcomb, 100 111. 611.
If the trustee makes a sale when nothing is due, the sale
is voidable as to a purchaser with notice. Chicago, Rock
Island and Pacific R. R. Co. v. Kennedy, 70 111. 350 ; Walker
v. Carleton, 97 id. 532.
If the mortgagor himself, or through his agent, buys the
property, his title may be impeached for usury in the mort-
gage. 1 Jones on Mortgages, (3d eel.) sec. Q±b.
The trustee's sale being, void, or at least voidable, on
account of the usury, appellants can insist upon the usury as
a ground to set aside the sale and trustee's deed, the same
as Guyton could have clone. Maher v. Lanfrom, 86 111. 513.
60 Tyler et at. v. Mass. Mutual Ins. Co. [Nov.
Brief for the Appellees. Opinion of the Court.
Messrs. G. & W. Garnett, for the appellees :
Irregularities in a sale are waived unless steps are taken
in a reasonable time to set the sale aside. Bush v. Sherman,
80 111. 160; McHany v. Schenk, 88 id. 365.
One notice was all that was necessary. If it contained all
the facts necessary to inform the public of the time, place
and terms of sale, the description of the property, and what
it is to be sold for, nothing more can 'be desired. Marsh v.
Norton, 75 111. 623, does not decide that a consolidation of
the notices would avoid the sale. At most, the consolidation
was but an irregularity.
The trustee's deed was sufficient to pass the title. It refers
to the notice, which is, that the trustee will sell all the inter-
est, etc., of Guyton and his wife, and their assigns.
To constitute usury both parties must have intended the
reservation or payment of more than the legal interest.
Tyler on Usury, 103; Conclit v. Baldwin, 21 N. Y. 219;
Lloyd v. Scott, 4 Pet. 205 ; Bank of United States v. Wag-
goner, 9 id. 399.
The life insurance premium was not usury, as Guyton
received full value for it, the company being solvent and the
charge reasonable. Neio York Fire Ins. Co. v. Donaldson,
3Edw. Ch. 199; Utica Ins. Co. v. Caldwell, 3 Wend. 296;
Tyler on Usury, 225.
If there was usury in the transaction, no advantage can be
taken of it after a sale under the trust deed and discharge
of the whole debt. Perkins v. Conant, 29 111. 184; Carter v.
Moses, 39 id. 539.
Mr. Justice Walker delivered the opinion of the Court :
It appears that one B. F. Guyton and wife executed three
deeds of trust, each on different tracts of land, to secure
three several notes, for different amounts, aggregating the
sum of $27,500, bearing interest at the rate of ten per cent.
18S3.] Tyler et al. v. Mass. Mutual Ins. Co. 61
Opinion of the Court.
The notes and deeds of trust all bear date the 1st day of
July, 1875, and payable on the 1st day of July, 1880, to the
order of the Massachusetts Life Insurance Company. The
interest was payable semi-annually, and for the payment of
which the maker executed interest notes or coupons. The
property was conveyed to N. B. Eappleye, and contained the
usual power of sale on default in payment. Each note con-
tained a provision that on default in payment of any install-
ment of interest, the holder of the notes might declare the
principal note due, and require the trustee to sell the prop-
erty, and satisfy the principal and interest of the note. Each
deed of trust contained the same provision. Afterwards,
Guyton and wife executed three other promissory notes, —
two for $1000 each, and one for $3200, — and executed three
other trust deeds on the same property, to secure the pay-
ment of this indebtedness. These latter notes and deeds of
trust bear date the 27th of July, 1875. The deeds were to
William B. Warren, and contained the usual powers of sale.
The notes, at their delivery, wTere payable to George S. Brown,
and are now held by appellant Tyler. The last named trust
deeds, although not in terms made so, are in fact junior
liens to the Eappleye trust deeds, being junior in date.
Default having been made in payment of some of the interest
coupons attached to each of the- first three notes, the holder
required Eappleye to exercise the powers conferred on him,
by selling the property and paying the notes, — principal and
interest. He, after advertising the property, on the 30th day
of January, 1878, sold the property to A. J. Smith, who pur-
chased for the insurance company, and he still holds the lots.
Tyler, the holder of the second series of notes, and Warren,
the trustee, filed their bill in the Cook circuit court to redeem,
alleging that there were such irregularities in the sale made
by Eappleye that it did ' not bar a redemption. They ask
that the sale be set aside, and they be let in to redeem from
the first three trust deeds. On a hearing in the circuit court
62 Tyler et al. v. Mass. Mutual Ins. Co. [Nov.
Opinion of the Court.
the bill was dismissed, and complainants bring the record to
this court by appeal, and urge a reversal.
It is first insisted that the sale was voidable because the
trustee advertised that he would sell under each trust deed
the land described therein, in one notice. It is claimed that
he should have given three separate notices, — one under each
trust deed. We are unable to perceive any objection to the
notice. It recited each trust deed, the lands each contained,
and gave notice that he would sell the land described in each
for the payment of the debt secured by the trust deed. The
sales were separate under each, of the land it described.
This was precisely as though there had been three separate
notices of the sale. There is no pretense that any of the lots
were sold under or by virtue of the power contained in a trust
deed that did not embrace such land. Each tract was sold
under the powers of the deed in which it was embraced.
Nor does it appear that any one was misled, or that any loss
was incurred by having published but the one notice. We
clearly have no power to set aside a sale when the power has
been pursued, and certainly not when no injury is shown to
have resulted. The deeds required notice of the sale to be
given before the sale, and a notice was given containing all
that was required. Appellants' counsel have not endeavored
to point out any injury that has been sustained by their
clients by reason of the notice as it was published.
There is some criticism of the trustee's deed. It is claimed
that it is defective because it does not purport, in terms, to
convey the interest of the assigns of Guyton. We regard this
as wholly non-essential. The deed recites that the trustee
conveyed "all the estate, right, title, interest, property, claim
and demand whatso*ever, both in law and equity, of the said
Benjamin F. Guyton and Lizzie F. Guyton." This was suffi-
cient to pass all the title and cut off the equity of redemption.
But if it were not, the notice stated he would sell the interest
of the grantors, their heirs and assigns, and he states in the
1883.] Tyler et al. v. Mass. Mutual Ins. Co. 63
Opinion of the Court.
deed he sold the property in pursuance of the notice, and if
he did, then that, in equity, was sufficient. If the words
which were omitted were essential, a court of equity would
decree a reformation of the deed, and inasmuch as this is
a proceeding in equity, the deed will be treated as thus
reformed.
It is urged that the transaction was tainted with usury,
and that being the case, the company had forfeited all inter-
est on the notes, and there was no interest due, and there
being none due, there was no failure or default in the pay-
ment of interest, and therefore there was no power to declare
the principal due or to make the sale ; that the sale was
made without power, and may be avoided. Concede there
was usury in the loan, (and the proofs seem to establish
there was,) still, does it follow that the sale may be set aside
and vacated? In the case of Perkins v. Conant, 29 111. 184,
the mortgagor sued to recover usurious interest collected by
the mortgagee, by a sale of the mortgaged premises under a
power of sale. It was there held, that inasmuch as the mort-
gagor permitted the sale for the usurious interest, he was
estopped from recovering it back. In the case of Carter v.
Moses, 39 111. 539, there were notes given that embraced
usury. The payer, to secure their payment, turned over to
the payee, notes, checks, etc., as collateral security. The
payee collected and applied the collaterals to the payment of
the usurious notes. The debtor filed a bill to enjoin the
trustee from selling land to pay other notes in which there
was no usury, and to have the money collected and applied
to pay usury credited on the notes still remaining unpaid.
It was, however, held, that complainant having voluntarily
paid the usury, he could not have it set off against the other
notes. These cases are decisive of the case at bar. * Had
complainants desired to prevent the collection of usury in
this case, they should have filed their bill to restrain the
collection of usury, and prevent the sale of the land by the
64 Ft. Clark Horse Ey. Co. v. Anderson. [Nov.
Syllabus.
trustee for more than was due, after all proper deductions
from the amount on account of the usury. By permitting
the sale to be made for principal and the usury, the debtor
and the subsequent incumbrancer are precluded from now
insisting on usury to defeat the sale. By permitting the sale
they must be regarded as having assented to it and the pay-
ment of the usury. »
We perceive no error in the decree below, and it is affirmed.
Decree affirmed.
The Fort Clark Horse Bailway Company
v.
James F. Anderson.
Filed at Ottawa November 20, 1883.
1. Injunction — when a threatened trespass will be enjoined. It is the
general rule that before a court of equity will lend its aid to enjoin a mere
trespass, facts and circumstances must be alleged in the bill from which it
may be seen that irreparable mischief will be the result of the act complained
of, and that the law can afford no adequate remedy.
2. The temporary interruption of the business of a city horse railway com-
pany, for only three or four days, by moving a large house along the street
lengthwise with the company's track, even granting that the company has the
exclusive right of way in the street for its cars, is not a case of irreparable
damage, or such an injury but that an adequate remedy exists at law. And
the furthe* fact that the defendant proposes to move other houses over the
same and other streets, when employed to do so, in view of the fact that such
removals are of rare occurrence, and not likely to occur on the same street
again for many years, and because it would be but a temporary interruption of
the company's franchise, was held not to furnish sufficient equitable ground
for decreeing a perpetual injunction.
Appeal from the Appellate Court for the Second District ; —
heard in that court on appeal from the Circuit Court of Peoria
county ; the Hon. David McCulloch, Judge, presiding.
1883.] Ft. Clark Horse Ey. Co. v. Anderson. 65
Briefs of Counsel.
Mr. H. W. Wells, for the appellant :
The courts of New York hold that a street railway com-
pany having the right to lay down a track and operate cars,
has an exclusive right of way ; that it is not liable to the
ordinary law of the road, and that the driver of a wagon or
other vehicle can not call upon the driver of a street car to
stop or turn out, or do any other act to avoid a collision, if
it can be avoided by himself. Baker v. H. R. R. Co. 4 Daly,
274; Adolph v. Park Ry. Co. 76 N. Y. 530. So in New Jer-
sey,— Citizens' Coach Co. v. Camden Horse Ry. Co. 33 N. J.
267.
Injunction is the proper remedy to protect a party in the
exercise of an exclusive privilege granted him by the statute.
High on Injunctions, sec. 570 ; Green v. Oakes, 17 111. 249 ;
Piscataqua Bridge Co. v. N. H. Bridge, 7 N. H. 35; Enfield
Bridge Co. v. H. and N. H. R. R. Co. 17 Conn. 40 ; Morri-
son v. King, 62 111. 30; C, LaF. and C. R. R. Co. v. D. and
V. Ry. Co. 75 id. 113; Craig v. People, 47 id. 487; Lucas v.
McBlair, 12 Gill & J. 13 ; Livingston v. Van Ingen, 9 Johns.
507 ; Croton Co. v. Ryder, 1 Johns. Ch. 611 ; Boston and
Lowell R. R. Co. v. Salem and Lowell R. R. Co. 2 Gray, 1.
Injunction is a proper remedy to stay an act causing irrep-
arable injury, or to prevent a multiplicity of suits. Livingston
v. Livingston, 6 Johns. Ch. 497 ; Hicks v. Silliman, 93 111.
274 ; Jenny v. Jackson, 6 Bradw. 32.
Where one claims the legal right to do that which will
work an injury, an injunction, and not a sword, is the proper
remedy. Goodnough v. Sheppard, 28 111. 81 ; Brush v. Fowler,
36 id. 63; Daily v. Dixon, 4 Bradw. 187.
Mr. Isaac C. Edwards, for the appellee :
The court will not interfere to prevent a nuisance, until the
matter has been tried at law. Dunning v. City of Aurora et al.
40 111. 481 ; Clark et al. v. Donaldson et al. 104 id. 639 ; Town
of Lake View v. Lite et al. 44 id. 81.
5—108 III.
66 Ft. Clark Horse Ey. Co. v. Anderson. [Nov.
Opinion of the Court.
If a party has a full and adequate remedy at law, he must
pursue that, and not resort to equity. Goodell et al. v. Lar-
son, 69 111. 145.
A temporary inconvenience is not the cause of irreparable
injury. Goodell et al. v. Larson, 69 111. 145.
Before a court of equity will lend its aid to enjoin a mere
trespass, facts and circumstances must be alleged in the bill
from which it may be seen that irreparable mischief will be
the result of the act, and that the law can afford no adequate
remedy. Livingston v. Livingston, 6 Johns. Ch. 497.
Appellee claims the right to use the street jointly with
appellant for lawful purposes. If he has no right on Jeffer-
son street with the building, but goes on said street, then the
injury threatened will be but a mere trespass, (if anything,)
to be consummated by a single act, and susceptible, in legal
contemplation, of complete reparation, and punishable, be-
sides, by pecuniary damages to be awarded in a court of law,
and that being true, equity will not interfere. High on In-
junctions, sees. 462, 468 ; Hamilton v. Steward, 59 111. 330 ;
Herrington v. Herrington, 11 Bradw. 121.
If there is a complete remedy at law, an injunction will
not lie. Adams' Equity, 210 ; Dickey et al. v. Reed et al. 78
111. 261 ; Baxter v. Board of Trade, 83 id. 146.
An injunction is a preventive remedy, and can not be used
directly or indirectly for the purpose of giving _ affirmative
relief, as is sought to be done in this case. Baxter v. Board
of Trade, 83 111. 146.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
This was a bill for an injunction, filed by the Fort Clark
Horse Railway Company, to restrain the defendant from inter-
fering with and stopping the cars running upon complainant's
horse railway. The bill alleges that complainant was the
18S3.] Ft. Clark Horse Ey. Co. v. Anderson. G7
Opinion of the Court.
owner of and operating a street railroad over and along cer-
tain streets in the city of Peoria, always running as many as
eight cars, and often as many as twenty; that cars passed
all points on the road as often as every five minutes, and
sometimes as often as one every minute, from early morn-
ing until eleven o'clock at night ; that defendant, a house-
mover, has a house on rollers near complainant's track, and
threatens to move it on and lengthwise of the track four
blocks in the center of the city, from Franklin to Hamilton
street, which would greatly hinder, delay and stop complain-
ant's cars for three or four days, and delay the public, and
greatly inconvenience and damage many thousand people ;
that although this particular interruption would only last
three or four days, and the damage therefrom might not
exceed $500 or $600, yet defendant threatens he will, and
complainant believes he will, frequently, and at will, so move
houses on complainant's track, and so stop complainant's
cars, and obstruct the public travel and complainant's use
of its railroad, which will impair the value of complainant's
franchise to an amount which can not be estimated, and
occasion great and irreparable injury. The bill prays that
the defendant may be enjoined from moving the building
lengthwise of complainant's track on the street mentioned,
and for a perpetual injunction to prevent defendant from
ever moving any building lengthwise of complainant's track
between the hours of six o'clock A. M. and eleven o'clock P. M.
The answer, except as to the damage claimed, admitted, gen-
erally, the allegations of the bill. The circuit court, on final
hearing, dismissed the bill. On appeal to the Appellate
Court for the Second District that court affirmed the decree,
and the complainant appealed to this court. The appellant
offered no evidence to sustain its bill, but relied upon the
admissions contained in appellee's answer, except that a map
of the city of Peoria, with the railroad and the place where
the obstruction was threatened, was introduced.
68 Ft. Clark Hobse Ry. Co. v. Anderson. [Nov.
Opinion of the Court.
Granting that appellant has the exclusive right of way in
the street for its cars, as against the appellee moving a house
along the street, the question arises whether the threatened
injury is one of such a character that a court of equity will
interfere by injunction to prevent it. The answer sets up in
defence that there would be a perfect remedy at law for the
injury, if wrongful. The general rule certainly is, that before
a court of equity will lend its aid to enjoin a mere trespass,
facts and circumstances must be alleged in the bill from
which it may be seen that irreparable mischief will be the
result of the act complained of, and that the law can afford
no adequate remedy. {Livingston v. Livingston, 6 Johns. Ch.
497.) The bill itself admits that the interruption of appel-
lant's business, from the particular act now threatened, would
be but temporary, — for only three or four days, — not causing
appellant more than $500 or $600 damage. The answer in
this respect is, that the act would be only a temporary incon-
venience, and would damage appellant only in dollars and
cents. It admits the building to be a very large one, — some
fifty-four feet long by forty wide. - This clearly does not make
a case of irreparable damage, or one where there would not
be an adequate remedy at law.
But the bill sets up further, that the defendant claims the
right, at all times, to so obstruct and stop the public travel
on appellant's railroad, and appellant fears he will often
attempt to do so, and that if he should carry out his threats
in that regard he would cause appellant great and irrepara-
ble loss and damage, and would impair the value of appel-
lant's franchise to an amount which can not be estimated.
The answer shows this claim of right to be to use any streets
over which appellant's railroad passes, in moving houses,
when it should be necessary in the carrying on of appellee's
business of house-moving, and that he would in no way injure
the easement, or franchise, or property of appellant in so
doing. The moving a house on a street is known to be of
1SS3.] Ft. Clark Horse Ey. Co. v. Anderson. 69
Opinion of the Court.
rare occurrence. It may never again happen with appellee
to have occasion to use the street in question in this same
way. The probability, under this claim of right, of future
repetitions of the threatened act, is too slight, in our opinion,
to lay a ground for equitable interference on this score, or
for the prevention of a multiplicity of suits.
It is contended that there is here, in the act threatened,
the case of a violation of a franchise or special privilege to
operate the street railroad, and that an injunction is the
proper remedy for protecting the owner of such a franchise
in the exercise of the exclusive privilege granted him. Ap-
pellant insists that appellee claims the right to interfere with
and destroy its franchise, and that there is danger thereof ;
but appellee does not assert such a claim, and there is no
reason to fear the destruction or any serious impairment of
appellant's special privilege. Appellee claims but the right
to move a house on the street when it may be necessary to
do so in the exercise of his business. This would be but a
temporary interruption of the exercise of appellant's right, —
a trespass, if wrongful, — for which there would be a remedy
by an action at law for damages. Where there is the kind
of, and no more of the interruption of, the enjoyment of a
franchise or special privilege than is shown by this record,
and no more probability of a continuing interruption, we
think a court of equity may well decline to interfere, and
leave the party to the remedy at law.
The decree of the Appellate Court will be affirmed.
Decree affirmed.
70 Potwin v. Johnson, Collectoe. [Nov.
Syllabus.
Henry Potwin
v.
William T. Johnson, Collector.
Filed at Ottawa November 20, 1883.
1. Judicial notice — of incorporation of city under general law. Where
a city in this State is incorporated under the act in relation to cities, villages
and towns, (chap. 24, sec. 3,) this court will take judicial notice of that fact.
2. Special assessments — in cities, etc., under the general Incorpora-
tion act, governed by that act. Special assessments in cities, towns and
Tillages organized under the general Incorporation act, in respect to the mode
of giving notice, or making demand of payment thereof, and the time at
which judgment must be applied for, are governed by the provisions in such
Incorporation act relating thereto; and the provisions in the Revenue act, in
so far as they differ from the same, have no relation to such cases. The
provisions in the two statutes being inconsistent with each other, can not be
construed in j^ari materia, but each applies to the class of special assess-
ments to which it relates.
3. Either two distinct classes of municipalities are provided for, and the
provisions of the general Incorporation law are applicable to the one class,
and those in the Revenue act relating to special assessments to the other class,
or the provisions in the general Incorporation act, being the last expression
of the legislative will, must be held a repeal of those in the other act to the
extent of their repugnance.
4. Same — city council may fix term of court to apply for judgment.
The city council of a city organized under the general Incorporation law has
the power to appoint the term of the court at which application for judgment
shall be made against property for delinquent special assessments, which
term may be a different one from that at which application is required to be
made for judgment for State and county taxes.
5. Constitutional law — whether statute embraces more than one sub-
ject expressed in title. The general act in relation to cities and villages is
not repugnant to the constitutional objection as embracing more than one
subject as expressed in the title. The power of opening, improving and
repairing streets is strictly germane and incidental to the general object of
municipal incorporation.
6. Same — what fills the purpose of prohibition as to bill having more
than one subject. The general purpose of section 13, article 4, of the con-
stitution, that no act "shall embrace more than one subject," to "be expressed
in the title," is accomplished when the title is comprehensive enough to rea-
18S3.] Potwin v. Johnson, Collector. 71
Brief for the Plaintiff in Error.
sonably include as falling within that general subject, and as subordinate
branches thereof, the several objects which the statute assumes to effect.
7. Same — whether act is a local or special one. The act in relation to
cities and villages is a general law, and not local or special, although there
may be municipal corporations to which it is not applicable, namely, those
in existence under special charters at the time of the adoption of the con-
stitution, which have not since sought to have their charters changed or
amended.
Writ of Error to the County Court of Cook county ; the
Hon. Mason B. Loomis, Judge, presiding.
Mr. Edward Boby, for the plaintiff in error :
Suit can not be maintained for a tax or assessment until it
has been demanded. Blackwell on Tax Titles, 171 ; Thomp-
son v. Gardner, 10 Johns. 404; St. Anthony v. Greely, 11
Minn. 321.
Statutory provisions for demand and collection by sale of
land, in the Bevised Statutes, are, chap. 24, sees. 149-154,
158, and chap. 120, sees. 177-180, 182, 185, 188, 190, 191.
Chapter 24 and chapter 120 having been passed at the same
session, and taken effect together on July 1, 1872, as to the
subject of levy and collection of taxes and special assess-
ments, are in pari materia, forming a system.
No time is fixed which must elapse after giving notice to
pay the assessment before taking subsequent proceedings. A
man must have some time in which to pay after such notice,
without cost or penalty. He is entitled to the whole of the
next day after service. Ireland v. Kipp, 11 Johns. 231;
Smedes v. Utica Bank, 20 id. 372 ; Eddy v. Jump, 6 Duer,
492; West River Bank v. Taylor, 34 N. Y. 128; Bowling v.
Harrison, 6 How. 257.
The collector had no power to apply for judgment for said
assessments, or either of them, prior to the May term, 1883.
Section 182 of the Bevenue law provides that any time after
the first day of April next after such delinquent taxes aud
72 Potwin v. Johnson, Collector. [Nov.
Brief for the Defendant in Error.
special assessments shall become due, the collector shall pub-
lish a notice of application for judgment, etc. This notice
must be published at least three weeks before the term of
the county court. Sec. 185, chap. 120.
The clauses of the City Incorporation act, (chap. 24, Eev.
Stat.) which purport to make a special law for the cases of
particular cities, excepting them out of the general law regu-
lating the practice and jurisdiction of courts of record, are
void, as being special legislation.
The general law contained in section 185, chap. 120, Eev.
Stat., is applicable to all cases, from which it appears that
the passage of the subsequent act is in violation of article 4,
section 22, of the constitution. It also is in contravention
to section 13 of the same article of the constitution, "that no
act shall embrace more than one subject, and that shall be
expressed in its title."
Mr. Francis Adams, for the defendant in error :
On July 26, 1882, plaintiff in error moved the court to set
aside the judgment in each of the four cases, which motion
the court overruled. A motion to set aside a judgment by
default is addressed to the discretion of the court, and its
denial can not be assigned for error. Thielman v. Berg, 73
111. 293 ; Union Hide and Leather Co. v. Woodley, 75 id. 435.
The sections of the Kevenue law relied on by plaintiff in
error in support of his motion, have no application to cities
incorporated under the general municipal Incorporation law.
People ex rel. v. Pierce et al. 90 111. 85 ; Leindecker v. People,
98 id. 21.
The objection to the notices sent by the county collector
is not well taken. Section 179 of the Eevenue law has no
application to assessments in cities incorporated under the
general law. The latter law provides both for notice by
publication and a personal demand. Eev. Stat. chap. 24,
sees. 151, 152.
1883.] Potwin v. Johnson, Collector. 73
Opinion of the Court.
The application at the July term was legal, and the war-
rants were issued in time for that term. Beers v. People, 83
111. 488.
Mr. Justice Scholfield delivered the opinion of the Court :
This writ of error brings before us for review the record of
a judgment of the county court of Cook county for the sale
of real estate to pay certain delinquent special assessments.
Notice was published that application for the judgment would
be made at the July term, 18S2, of that court, and the court
at that term, by an order then entered of record, gave prop-
erty owners interested until the 12th day of the month to file
objections, and on the 19th day of the month, no objections
having been filed, judgment was rendered against the real
estate, as sought by the collector. On the 26th day of the
month plaintiff in error moved the court to set aside the
judgment, but this motion was overruled.
Numerous objections are urged by the attorney for plaintiff
in error, in the printed argument before us, against the juris-
diction of the court to render this judgment. We have
endeavored to give them such consideration as their import-
ance deserves, and having done so we are of opinion they
are all untenable.
It is contended, first, that the only demand made for the
payment of the special assessments, or notice thereof sent to
the land owners, was by a postal card sent through the mail,
and "the advertisement, the process by which suit was begun,
was published twenty-two days before the assessments were
demanded, and was, therefore, void;" and second, that "the
postal card, demand and notices were void, because costs
were improperly included in the demand. " It is also further
contended, that "the collector had no power to apply for
judgment for said assessments, or either of them, prior to
the May term, 1883, of the court." These contentions, as we
understand counsel, are based upon the hypothesis that the
74 Potwin v. Johnson, Collector. [Nov.
Opinion of the Coul't.
general Kevenue act, (chap. 120, Eev. Stat. 1874,) controls
in such cases as to the notice and demand to be given or
made, and also as to the term at which judgment must be
applied for. We must take judicial notice of the fact that
the city of Chicago is incorporated under the act in relation
to "cities, villages and towns." (Chap. 21, Kev. Stat. 1874.)
If, therefore, the general Kevenue act provides, in such cases,
a different mode for giving notice or making demand, and a
different time at which judgment must be applied for, than is
provided in the act in relation to cities, villages and towns,
it can have no application to the case, and the case will have
to be determined solely with reference to the requirements of
the latter act. Counsel do not question this, but insist both
acts relate to the same subject, took effect at the same time,
and should therefore be construed as in pari materia.
In our opinion section 179 of the general Ee venue act,
and sections 151 and 152 of the act in relation to cities, vil-
lages and towns, —which relate to the same general subject,
namely, the giving of notice to the property owner of the
amount of the judgment of confirmation of special assess-
ment against his property, and the demand for the payment
thereof, — can not be construed so as to give practical effect
to the language of both, as applicable at the same time to the
same subject matter. Section 179 of the general Eevenue act
makes it the duty of the county collector "to cause demand
to be made for the payment of such special assessment, or a
notice thereof to be sent by mail, or otherwise, to the owner, if
his place of residence is known." Section 151 of the act in
relation to cities and villages makes it the duty of the city
collector to give notice thereof "by publishing such notice in one
or more newspapers in such city," etc. And section 152 of
the same act makes it the duty of the~city collector, "as far
as practicable, to call upon all persons resident within the
corporation whose names appear upon the assessment roll, or
the occupants of the property assessed, and personally, or
18S3.] Potwin v. Johnson, Collector. 75
Opinion of the Court.
by written or printed notice left at his or her usual place of
abode, inform them of such assessment, and request payment
of the same. And such collector omitting so to do shall be
liable to a penalty of $10 for every such omission; but the
validity of the special assessment, or the right to apply for
and obtain judgment for any such special assessment, shall
not be affected by such omission." It is thus seen the officers
are different, the notices to be given are different, and, in the
one case, the consequence of a failure to give notice is dif-
ferent from what it is in the other.
The difference is further apparent in this, if the county
collector does not collect within the proper time, he simply
proceeds, under section 182 of the Kevenue act, to advertise
and obtain judgment, and his certificate that the required
demand was made, or notice given, is made sufficient evi-
dence thereof. (See last sentence of section 179.) Bat sec-
tion 153 of the act in relation to cities, villages and towns is
as follows : "It shall be the duty of the collector of special
assessments, within such time as the city council or board
of trustees may by ordinance provide, to make a report, in
writing, to the general officer of the county authorized or to
be designated by the general Revenue law of this State to
apply for judgment and sell lands for taxes due the county
and State, of all the lands, town lots and real property on
which he shall have been unable to collect special assess-
ments, with the amount of special assessments due and
unpaid thereon, together with his warrant, or with a brief
description of the nature of the warrant or warrants received
by him, authorizing the collection thereof, which report shall
be accompanied with the oath of the collector that the list is
a correct return and report of the lands, town lots and real
property on which the special assessment levied by authority
of the city of , (or village of , as the
case may be,) remain due and unpaid ; that he is unable to
collect the same, or any part thereof, and that he has given
76 Potwin v. Johnson, Collector. [Nov.
Opinion of the Court.
the notice required by law that said warrants had been
received by him for collection. Said report, when so made,
shall be prima facie evidence that all the forms and require-
ments of the law in relation to making said return have
been complied with, and that the special assessments men-
tioned in said report are due and unpaid." It is, in our
opinion, utterly impossible that these thus widely different
provisions can be the law operative in the same municipality
at the same time.
We must then hold, as was held in The People v. Pierce,
90 111. 85, with regard to other provisions of these statutes, —
and with which the writer of this opinion and Mr. Justice
Scott did not concur, — that two distinct classes of munici-
palities are provided for, and the provisions of the one act
applicable to the one class, and those of the other act to the
other class ; or that, the provisions being repugnant, those of
the last act, which is the act in relation to cities, villages and
towns, being the last expression of the will of the legislature,
must be held a repeal of those of the former to the extent
of the repugnance ; but in either view the proceeding under
the act in relation to cities, villages and towns is sustained.
The fact that section 154 of the act in relation to cities, vil-
lages and towns requires the general officer, when he shall
receive the report of the city collector, to proceed to obtain
judgment and make sale as provided by the provisions of the
general Ee venue law, does not militate against this position,
because that section expressly contains the exception that the
provisions of the general Revenue act shall not apply "when
otherwise provided herein." As to the anterior steps of giv-
ing notice, making demand, selecting the term of court, etc.,
it is "otherwise provided therein."
In Leindecker v. The People, 98 111. 21, we held that in
respect to special assessments levied by a city or town organ-
ized under the general Incorporation law, that law confers
upon the city council the power to appoint the term of the
1883.] Potwin v. Johnson, Collector. 77
Opinion of the Court.
court at which application for judgment shall be made, which
may be a. term other than that at which application is required
to be made for judgment for State and county taxes. Counsel
entirely misapprehends the ground of our decision in Potwin
v. Johnson, 106 111. 532, in supposing, as he contends in his
argument, that we there decided that this case comes under
the general Kevenue act. We there decided, only, that under
the amended Practice act the appeal should have been to
this court instead of to the Appellate Court, because the case
"related to the revenue. " But the case "relates to the rev-
enue" without reference to the title of the statute under which
it is proper to proceed.
It is, however, argued by counsel, that if the construction
we have given be correct, then the act in relation to cities,
villages and towns "offends against the constitution in seven
particulars," etc. The seven particulars are included within
two general objections : First, that the act embraces more
than one subject, and the title of the act makes no mention
of the power conferred upon. county courts to entertain pro-
ceedings and render judgments in cases of special assess-
ments ; second, that it is a local or special act. In neither
respect, in our opinion, can the objections be maintained.
First — The opening, improving and repairing of streets
constitute one of the most usual powers of municipal corpo-
rations. We doubt whether an important city, village or
town ever was incorporated in this country to which this
power was not granted. In the very nature of things it is
incidental to the successful exercise of general police powers,
and, we think, we are abundantly sustained by authority in
asserting that such power is as germane and incidental to
the general object of municipal incorporation as any other
power exercised by municipalities. Vide Dillon on Mun.
Corp. sec. 516.
Precisely this same objection was urged in Prescott v. Chi-
cago, 60 111. 121. The proceeding there, as here, was for a
78 Potwin v. Johnson, Collector. [Nov.
Opinion of the Court.
judgment against delinquent lands upon a special assess-
ment. The statute containing the power was entitled "An
act to amend the charter of the city of Chicago, to create a
board of park commissioners, and to authorize the levy of a
tax in West Chicago, and for other purposes." Nothing was
said about special assessments. It was said in the opinion
then filed: "The principal object of the act is to amend the
charter of the city of Chicago, and in so doing to extend the
city limits, to establish and provide for the improvement and
regulation of public parks in the west division -of Chicago.
All of these purposes are well expressed by the title in these
words : 'An act to amend the charter of the city of Chicago.' "
In O'Leary v. County of Cook, 28 111. 534, the title of the
act was "An act to amend an act entitled 'an act to incor-
porate the Northwestern University.' " And it was held that
a section prohibiting the sale of ardent spirits within four
miles of the university was sufficiently germane to the object
and purpose expressed in the title, to be free of constitutional
objection.
In Neijing et al. v. Town of Pontiac, 56 111. 172, under
an "Act to extend the corporate powers of the town of Pon-
tiac," it was held a provision forbidding beer to be brought
within three miles of the town, "for the purpose of trafficking
therein in any way whatever, " was sufficiently germane to the
subject expressed in the title of the act, and therefore free of
constitutional objection. Other illustrations will be found in
Guild, Jr. v. City of Chicago, 82 111. 473 ; The People ex rel.
v. Wright, 70 id.. 388; Belleville R. R. Co. v. Gregory, 15 id.
20; Binzv. Weber, 81 id. 288; Johnson v. The People, 83
id. 431.
The general purpose of this provision is accomplished
when the title is comprehensive enough to reasonably include
as falling within that general subject, and as subordinate
branches thereof, the several objects which the statute as-
sumes to effect.
1883.] Potwin v. Johnson, Collector. 79
Opinion of the Court.
Second — In The People ex rel. v. Wright, supra, we said,
quoting from McAunich v. Mound R. R. Co. 20 Iowa, 338 :
"Laws are general and uniform, — not because they operate
upon every person in the State, for they do not, but because
every person who is brought within the* relations and circum-
stances provided for is affected by the laws. They are gen-
eral and uniform in their operation upon all persons in the
like situation, and the fact of their being general and uniform
is not affected by the number of those within the scope of
their operation."
In The People v. Cooper et al. 83 111. 585, after referring
to this doctrine, as announced supra, in The People ex rel. v.
Wright, and in speaking of the clause of the constitution
prohibiting the enactment of local or special laws for the
incorporation of cities, villages, etc., we said : " The evil
supposed to exist which led to the adoption of the clause of
the constitution under consideration, was dissimilarity in the
provisions of charters or different cities, towns and villages,
and while it was not designed, by the mere act of adopting
the constitution, to repeal the provisions of existing charters
any further than they were in conflict with other provisions
of the constitution which became operative without the aid
of legislation, it was designed that no city, town or village
should thereafter become incorporated, or have its charter
changed or amended, except by virtue of a general law."
And again we said: "The General Assembly passed an act,
in force July 1, 1872, providing for the incorporation of cities,
and that those incorporated before the adoption of the con-
stitution, under special charters, might change their charters
and adopt its provisions. It is unlimited in its application,
and, so far as we have discovered, fully meets the require-
ments of the constitution. It contains all the provisions
essential to a complete municipal code, including those pro-
viding for the levying and collecting taxes." And again we
said : "As before observed, there is no constitutional objec-
80 Potwin v. Johnson, Collector. [Nov.
Opinion of the Court.
tion to the general Incorporation law, or the general Kevenue
law, so far as we are aware. The general Incorporation law
was an indispensable enactment, to enable cities to become
incorporated, and change or amend their charters in con-
formity with the constitution." Afterwards, in Guild v. The
People, supra, which was decided after the decision in the
above case, although it is reported in an earlier volume than
the one in which that case was reported, after referring to
the ruling above quoted, we said : "All that is practicable,
or could have been intended, was that the legislature should,
by a general law, provide for the incorporation of cities,
towns and villages, or the change or amendment of their
charters, leaving it to those interested to bring them within
its operation. " And further along in the opinion we also
said : "This section of the constitution relates to two classes
of cases : First, to cities, towns and villages thereafter to
be incorporated; second, to those thereafter to have their
charters changed or amended, — and thus contemplates the
probable continuance for some time of the existing want of
uniformity in such charters, but intending that all future
legislation in respect to such charters should be with a view
of producing ultimate uniformity, as far as that would result
from the law being general."
Thus, after full consideration and reconsideration, we are
as firmly committed to the doctrine as we can be to any doc-
trine, that the act in relation to cities and villages is a gen-
eral law, and not local or special, although there may be
municipal corporations to which it is not applicable, namely,
municipal corporations in existence under special charters at
the time of the adoption of the constitution, which have not
since sought to have their charters changed or amended. It
is general and of uniform application to all cities, towns and
villages thereafter becoming incorporated, or thereafter hav-
ing their charters changed or amended, to the extent of such
change or amendment, and thus fully conforms to the defini-
18 S3.] Breed v. Gorham et al. 81
Syllabus.
tion of a general law. The fact that county officers, judicial
officers and courts of justice may thus be incidentally affected,
is unimportant. All of the same class or grade are affected
alike, and what may result in legally enforcing special assess-
ments is precisely what happens, or may happen, with refer-
ence to the enforcement of every ordinance which a city
council or board of village trustees may be empowered to
ordain. New duties may thereby incidentally devolve upon
officers, and new powers and jurisdictions result to judicial
tribunals ; but so long as the sections under which they arise
are germane and subordinate to the general purpose of the
municipal incorporation as expressed in the title to the act,
and affect all within the relations and circumstances provided
for alike, so far as we are advised no constitutional objection
can be successfully interposed.
No ground for setting aside the judgment upon motion
was shown, other than the defects of jurisdiction claimed to
exist, and upon which we have herein expressed our views.
The defence was strictly technical, and in our opinion, as
has been seen, it is not sustained by the record.
The judgment is affirmed.
Judgment affirmed.
Allen Breed
v.
Charles T. Gorham et al.
Filed at Ottawa November 20, 1883.
1. Judgment — lien — on after acquired land. Where an execution
is issued upon a judgment in a court of record within one year from the
time it is rendered, the judgment will become a lien upon any real estate the
defendant in the judgment may acquire subsequent to its rendition, and
within seven years; but if no execution is issued thereon within a year, no
lien will exist.
6—108 III.
S2 Breed v. Gorham et al. [Nov.
Brief for the Appellant.
2. "Where it is made to appear from the evidence that an execution was
issued upon a judgment within one year after its rendition, and placed in the
hands of the sheriff, the lien of the judgment will attach, although such exe-
cution becomes lost, and is never returned to the clerk's office.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of
Cook county ; the Hon. John A. Jameson, Judge, presiding.
Mr. Morton Culver, for the appellant:
Execution must issue on the judgment within a year from
the time it first actually attaches to the specific property.
Execution must also issue within one year from rendition of
the judgment. Eames v. German Turn Verein, 74 111. 54 ;
Harris v. Cornell, 80 id. 54; Hernandez y. Drake, 81 id. 34;
St. Joseph Manf. Co. v. Daggett, 84 id. 556 ; Barron v. Thomp-
son, 54 Texas, 235.
A judgment lien in the State of Illinois is purely stat-
utory, and, under the terms of the statute of 1872, does not
attach to after acquired property of the judgment debtor.
Calhoun v. Snider, 6 Binn. (Pa.) 135 ; Richter v. Slin, 8
S. & K. 439.
The lien is discharged unless execution issue within one
year from the time it first attached. Hernandez v. Drake, 81
111. 34.
Colby took his title to these premises, if at all, on May 1,
1881. Richter v. Slin, 8 S. & E. 440; Rappleye v. Interna-
tional Bank, 93 111. 402.
The lien attaches upon an equitable title. It did so attach
on the equitable title of Colby, on that day. Rogers v. Brent,
5 Gilm. 573 ; Niantic Bank v. Dennis, 37 111. 381 ; Maghee v.
Robinson, 98 id. 466.
The lien of the judgment had attached before the second
execution issued, and there was such negligence in pursuit of
the lien by the second execution, as well as the first, as to
cause that lien, if one existed, to become dormant as against
1SS3.] Bkeed v. Gorham et al. 83
Brief for the Appellees.
an innocent purchaser. The law does not favor the trans-
forming of judgment liens into mortgages. Bennett v. Gam-
ble, 1 Texas, 124; Towns v. Harris, 13 id. 507; Gilmore v.
Davis, 84 111. 487 ; Garner v. Willis, Breese, 368 ; Ross v.
Weber, 26 111. 221 ; Davidson v. Waldron, 31 id. 121 ; Free-
man on Executions, sec. 206.
The judgment in that court being dormant, execution could
not properly issue thereon until it was revived by scire facias.
Chase v. Frost, 60 111. 143.
The plaintiff in the case of Gorham against Colby was not
entitled to an alias execution upon the showing made. Kel-
logg v. Buckler, 17 Ga. 190; Walls v. Smith, 19 id. 11; Par-
don v. Pardon, 2 Miles, (Pa.) 173; Taylors Appeal, 1 Pa. St.
392.
Messrs. Crane & Abbott, for the appellees :
The judgment became a lien for seven years if execution
was issued thereon within one year from its date. Eev. Stat.
chap. 77, sec. 1.
An actual delivery of execution to the sheriff is not neces-
sary except when the lien depends upon such delivery. Mer-
chants' Ins. Co. v. Schroeder, 104 111. 171 ; Burdick v. Green,
18 Johns. 14.
The delivery of an execution to the sheriff, and the date of
delivery, may be proved by any competent evidence, and the
sheriff's neglect to indorse the date of receiving a writ does
not affect its validity, or plaintiff's rights thereon. Freeman
on Executions, sec. 98 ; Hale's Appeal, 44 Pa. St. 439 ; John-
son v. McLane, 7 Blackf. 501 ; Hester v. Keith, 1 Allen, 316 ;
Fletcher v. Pratt, 4 Vt. 182.
Leaving the writ at the sheriff's office is a delivery to him.
Freeman on Executions, sec. 298.
The lien on personal property may be postponed to junior
execution by the plaintiff instructing the officer ' not to levy.
(Gilmore v. Davis, 84 111. 487 ; Ross v. Weber f 26 id. 224.)
84 Breed v. Gorham et al. [Nov.
Opinion of the Court.
But mere omission to have a levy made is no waiver of the
lien on real estate. That is good for seven years. Rogers v.
Dickey, 1 Gilm. 644; McIIany v. Schenk, 88 111. 357.
The judgment becoming a lien on any lands the debtor
then owned, the same lien attached to property subsequently
acquired. Freeman on Executions, p. 295, sec. 197; Leay.
Hopkins, 7 Pa. St. 492; Wales v. Bogue, 31 111. 464; Rooty.
Curtis, 38 id. 192.
Mr. Justice Craig delivered the opinion of the Court :
On the 10th day of October, 1879, appellee Charles T.
Gorham recovered a judgment in the Superior Court of Cook
county, against Gilbert A. Colby, for the sum of $5500. On
the same clay an execution was made out on the judgment
by the clerk of the court. On the 1st day of October, 1881,
Colby obtained a deed for the land involved in this litigation,
which was recorded on December 8, following. Colby and
one Gardner had some business transactions together, on the
adjustment of which a bill in chancery was filed, and it is
claimed that the land in question, under decree of court,
was sold by a receiver, and purchased April 1, 18S2, by
Allen Breed, appellant. On the Sth day of September, 1882,
Charles T. Gorham sued out an alias execution on his judg-
ment, which was delivered to the sheriff, and a levy made
on the property in controversy. The sheriff advertised the
property for sale, and this bill was filed by Breed, the pur-
chaser under the receiver's sale, to remove appellees' judg-
ment lien as a cloud upon his title.
The question presented by this record is, whether Gorham,
who obtained a judgment against Colby on the 10th day
of October, 1879, acquired a lien on the lands in question
which was superior to the subsequently acquired title which
appellant, Breed, obtained in April, 1882, under the receiver's
sale.
1883.] Breed v. Gorham et at. 85
Opinion of the Court.
Section 1, chapter 77, of the statute, provides "that a judg-
ment of a court of record shall be a lien on the real estate of
the person against whom it is obtained, situated within the
county for which the court is held, from the time the same
is rendered or revived, for the period of seven years. * * *
When execution is not issued on a judgment within one
year from the time the same becomes a lien, it shall there-
after cease to be a lien." Colby purchased this property
October 1, 1881, and the judgment would become a lien
upon it from the time he made the purchase, providing an
execution wTas issued on the judgment within one year from
the time it was rendered, otherwise no lien existed. On the
day the judgment was rendered an execution was ordered,
and in due form made out by the clerk of the court, but no
trace of the execution could ever be found in the hands of
the sheriff or any of his deputies, and from this fact it is
contended that an execution was not issued, within the mean-
ing of the statute.
It will not be necessary to determine, in this case, whether
the mere fact -that a clerk of a court makes out an execution
in proper form, and delivers it to the plaintiff or his attorney,
or keeps it in his office, can be regarded as issuing an execu-
tion, within the meaning of the statute. The court, on the
hearing, found that the evidence introduced by the defendant
in the bill was sufficient to establish the fact that the execu-
tion was delivered to the sheriff, and if this finding was sus-
tained by the evidence, as we think it was, such finding of
fact is conclusive of the case, and the other question is imma-
terial.
It appears, from the evidence, that the sheriff of Cook
county kept a book in which all executions received by him
were entered; that he also kept an execution clerk, whose
duty it was to receive executions and make the proper entry
in the book, and then pass them over to the chief deputy
sheriff. These officers all testify that they have examined
S6 Breed v. Gorham et al. [Nov.
Opinion of the Court.
the book kept by the sheriff, and find no entry of the execu-
tion in question, and they have no knowledge of such an
execution. In addition to this the execution was never re-
turned to the clerk of the Superior Court. This testimony,
in the absence of other evidence, might be regarded as suf-
ficient to make out a prima facie case that the execution was
never delivered to the sheriff ; but to overcome the force and
effect of this testimony the defendant showed that on the day
the judgment was rendered an execution was ordered, and
the clerk's record shows that oh that clay an execution was
made out by the clerk in proper form. Crane testified that
he ordered the execution, and requested one Johnson to get
the execution and deliver it to the sheriff ; that he saw John-
son with the execution in his possession, and he was then on
his way to the sheriff's office. Johnson testified that he got
the execution from the clerk, and delivered it to some of the
sheriff's employes in the sheriff's office. If these witnesses
are reliable, (and we perceive nothing in the record to im-
peach their credibility,) it seems plain that the execution was
actually delivered to the sheriff, and the sheriff, or his depu-
ties, in the hurry of business, failed to make the accustomed
entry in the record which they kept for that purpose. At
all events, the evidence introduced upon this point was, in
our judgment, sufficient to authorize the finding of the court
that the execution was issued as required by the statute. If
it was, then the property purchased by the defendant in the
judgment became subject to the lien provided by the statute.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed.
1883.] Hairston et al. v. Ward et al. . 87
Sjdlabus. Opiuion of the Court.
George Hairston et al.
v.
Lorenzo C. Ward et al.
Filed at Ottawa November 20, 1883.
»
Deed of tetjst — setting sale aside for want of personal notice. On
bill filed to set aside a trustee's sale and deed, made under a deed of trust,
on trie ground the sale was made in violation of a promise to give the debtor's
agent notice before taking steps to sell, in time to enable him to make pay-
ment, the evidence as to such promise was conflicting and about equally
balanced, and the subsequent conduct of the debtor after the sale was incon-
sistent with the fact of there having been any such promise or of any reliance
upon it, and there were subsequent occurrences that took place between the
parties before the sale which did away with the effect of any such promise,
if any was made, in which the debtor had time given him to make payment,
and was notified that no further extension would be given: Held, that the
bill was properly dismissed, the proof showing no sufficient ground to set
aside the sale.
Appeal from the Circuit Court of Cook county ; the Hon.
T. A. Moran, Judge, presiding.
Messrs. Bisbee, Ahrens & Decker, for the appellants.
Mr. John Woodbridge, for the appellees.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
On the 17th day of August, 1874, George Hairston and
Nicholas E. Hairston executed a bond to Lorenzo C. Ward,
for the payment to him of $11,000 on the 17th day of Feb-
ruary, 1877, with interest at the rate of ten per cent per
annum, payable semi-annually, the interest payments being
evidenced by five interest coupons, to secure the payment of
which the said Hairstons executed a trust deed, with power
of sale to Pindar Ward, upon certain real estate in Chicago,
88 Hairston et al. v. Ward et at. [Nov.
Opinion of the Court.
being outside property, and consisting of 9T4^30- acres of land.
On the 8th day of December, 1879, the trustee in the trust
deed, for default in the payment of the principal and accrued
interest of said indebtedness, offered the said premises for
sale at public sale under the deed of trust, and struck off the
same to Lorenzo C. Ward, who bid $7000 therefor, which
amount, less expenses, was credited on the bond, and he
received the usual trustee's deed for the premises. On June
20, 1881, the Hairstons filed their bill in chancery in the
circuit court of Cook county to set aside said trustee's sale
and trust deed, and to redeem the premises, on the sole
ground that Lorenzo C. Ward, before the sale, had agreed
with Edgar Loomis, the agent of the complainants in Chicago,
that before he took any steps to foreclose the trust deed he
would give Loomis personal notice, and ample time to get
and pay WTard the money, and that the sale was made with-
out such notice, and without the knowledge of complainants
or Loomis. Upon hearing, on proofs, the circuit court dis-
missed the bill, and the complainants appealed to this court.
The evidence is not satisfactory that there was the promise
made which is relied upon as the ground for relief. It is
testified to by Loomis, and denied by Lorenzo C. Ward.
Loomis' testimony is, that he had a conversation with Ward
upon the subject of the indebtedness, and that "finally Mr.
Ward wouldn't agree, — would not say that he would hold it
any particular time ; but that before he took any steps to
foreclose the trust deed he would give me personal notice,
and ample time to get and pay him the money. " Mr. Ward
denies making this statement, or that he at any time talked
with Loomis on the subject and promised him that he would
give him any notice whatever.
Subsequent to the sale there were two interviews between
George Hairston and Lorenzo C. Ward, — one in June, 1880,
and one in June, 1881, — when Hairston came to St. Charles,
in this State, where Ward lived, to see him in regard to the
1883.] Hairston et al. v. Ward et al. 89
Opinion of the Court.
sale and the property. There is uncontradicted testimony
that at neither of these interviews did Hairston express any
dissatisfaction at the making of the sale, or say anything
whatever of such a promise having been made ; and that at
the first interview Hairston said, that in all this business and
the transactions between them he had nothing to complain
of, — no unfairness on the part of Lorenzo C. Ward. This is
conduct inconsistent with there having been such a promise,
or at least with there having been any reliance upon it.
But had there been the promise to Loomis as testified to,
there were subsequent occurrences that took place between
George Hairston and Ward, which, we think, do away with
the effect of such promise, as affording any ground for relief
in this case. Loomis is a little indefinite about the time of
the supposed promise, but in the bill the time of the promise
is stated as "at about the maturity of the bond." On Octo-
ber 10, 1877, some eight months after the maturity of the
bond, (and so, as we take it, after the supposed promise to
Loomis,) Ward writes this letter to one of the Hairstons :
"St. Charles, Oct. 10, 1877.
"N. E. Hairston, Esq., Crawfordsville, Miss.:
"Dear Sir — I have been hoping to hear from you since
my last. I have bought in your property for taxes, — about
$1800, for three passed years. * * * But now, my
friend, how soon are you coming up, to square up interest
and taxes? You must get round. The principal can run.
Write me. * * * Don't you see I am getting a good deal
of money in this? It is crowding $15,000.
"Yours, truly, L. C. Wtard."
On February 27, 1878, George Hairston called upon Lo-
renzo C. Ward, at St. Charles, and paid him $500. At that
time there was some $3500 due for interest, and taxes which
Ward had paid. Ward testifies : "I remember the payment
made by Hairston to me of $500, in 1878. * * * At
90 Hairston et at. v. Ward et al. [Nov.
Opinion of the Court.
that time had some conversation with Hairston about this
matter. I said to him he need not ask for- further favors
unless he paid right up. That was before and after he paid
the $500. He wanted that I should extend it a short time,
until he could go home, and that he would send the amount,
at least of the taxes and interest behind and falling due, and
I refused, but at last I said : 'It will be the last chance
unless you pay up; the §500 is no inducement; I will make
no promise to give you further time.' I had tried him a
year, and it was useless. He replied he would pay me $500,
and would show me by sending right up the balance. He
sent not a dollar further." There does not appear to have
been any further communication between the parties before
the sale.
Now, it seems to us that these subsequent occurrences
between Ward and the principals themselves should be taken
as doing away with or as answering the supposed promise to
Loomis, the agent, at some time before, if there had been
such a promise made ; ihat such promise could not thereafter
be reasonably relied upon, and lull the complainants into
security that no proceeding would be had under the trust deed
until some further notice had been given, and ample time to
get the money. Loomis says the promise to him was to give
him personal notice, and ample time to get and pay him
(Ward) the money. Here was a substantial fulfillment of
such a promise by personal notice to the principals them-
selves, and giving them ample time. They were distinctly
notified that the interest and taxes must be paid immediately,
— that no further time would be given unless they were so
paid. It was virtually a notification that unless such pay-
ment of interest and taxes was made immediately, or at least
upon Hairston's return to Mississippi, that then, and without
any further delay, the trust deed would be foreclosed, — and
there could not reasonably be reliance upon anything differ-
ent. After this, there was ample time allowed to raise and
18S3.] Thomas v. Fame Ins. Co. 91
Syllabus.
pay the money before making the sale, viz., from February
27, 1878, until December 8, 1879. The trust deed itself was
in the usual form, and the only notice it required was thirty
days' publication of notice of the sale in a daily Chicago
newspaper, which was given ; and besides, there was in the
trust deed an express waiver of personal notice of the sale.
We are unable to say that the decree is unwarranted by
the evidence, and it is affirmed.
Decree affirmed.
David J. Thomas
v.
The Fame Insurance Company.
Filed at Ottawa November 20, 1883.
1. Peactice — when Appellate Court reverses, but fails to find facts —
presumption. Where the Appellate Court reverses the judgment of a circuit
court, but fails to recite in its final order the facts as found by it, it will be
presumed that the Appellate Court found the facts the same way as did the
trial court, and reversed for some error of law in the proceedings; and in
such case, if the record of the trial court fails to show any error as to the
law, the judgment of the Appellate Court must be reversed.
2. Amendment— change of parties is not a change of the action. It
was evidently the intention of the legislature in adopting the provision in
section 24 of the Practice act, that no amendment after the commence-
ment of the suit and before final judgment, resulting merely in a change or
substitution of parties to the action, or in a change of the form of the action,
should be deemed a change of the aotion itself. The identity of the cause
of the action, in such case, is still preserved.
3. Same — right of defendant to plead limitation after amendment.
"Where, after the time limited by contract for bringing an action on a policy
of insurance, an amendment is allowed, not changing the original cause of
action or ground on which a recovery is sought, but merely changing the
parties plaintiff by substituting another person as plaintiff, a plea setting up
the limitation presents no defence, the suit having originally been commenced
within the time limited.
92 Thomas v. Fame Ins. Co. [Nov.
Brief for the Appellant.
4. But where some new cause of action has been introduced into a suit
by amendment, against which the Statute of Limitations had run before
making such amendment, the defendant will be entitled to present the bar
of the statute as to such new claim or cause of action.
5. Insurance — breach of warranty a defence, without showing an in-
crease of risfc. Where an application for insurance provided that the answers
to the questions therein propounded should form a part of the contract of
insurance, and a warranty on the part of the applicant, and the policy pro-
vided that for any misrepresentation or concealment touching the risk it
should be void, the company may avail itself of the applicant's breach of
warranty in the description of the property insured, and the survey thereof,
without showing, or its otherwise appearing, that the risk was thereby mate-
rially affected. If the description was false, it is unimportant whether this
was material to the risk or not.
Appeal from the Appellate Court for the First District ; —
he.ard in that court on appeal from the Superior Court of Cook
county ; the Hon. Sidney Smith, Judge, presiding.
Mr. Philip Stein, for the appellant :
The plea of limitation presented no defence. The amend-
ment introduced no new cause of action. It was immaterial
to whom the appellee might pay, if liable on the policy.
A warranty in the law of insurance is never created by
construction. It must appear in express terms, affirmatory
or promissory, or must necessarily result from the nature of
the contract. Jefferson Ins. Co. v. Cotheal, 7 Wend. SO ;
Mutual Benefit Life Ins. Co. v. Robertson, 59 111. 123.
Warranties are construed strictly against those for whose
benefit they are made, and so, if possible, as to avoid a for-
feiture. Hyde v. Bruce, 3 Doug. 213 ; Woiid Mutual Life
Ins. Co. v. Schidtze, 73 111. 586 ; Saylor v. Insurance Co.
2 Curtis' C. C. 613; Blood v. Howard Fire Ins. Co. 12 Cush.
472 ; Catlin v. Springfield Fire Ins. Co. 1 Sum. 434 ; Ripley
v. Mtna Ins. Co. 29 Barb. 552 ; May on Insurance, sees. 162,
171 ; Flanders on Fire Insurance, (2d ed.) 292 ; Wood on
Fire Insurance, sec. 167; Morse v. Insurance Co. 30 Wis.
540 ; Carter v. Humboldt Fire Ins. Co. 17 Iowa, 456.
1883,] Thomas v. Fame Ins. Co. 93
Brief for the Appellee.
The fact that the application was submitted as a warranty
does not make it one, unless the policy adopts the applica-
tion, by apt and proper language, as a part of the contract,
and not always even then. Boardman v. AT. H. Mutual Ins.
Co. 20 N. H. 551 ; Owens v. Holland Purchase Ins. Co. 56
N. Y. 565 ; Hartford Protection Ins. Co. v. Harmer, 2 Ohio
St. 461 ; American Popular Life Ins. Co. v. Day, 39 N. J. 89 ;
Howard Fire and Marine Ins. Co. v. Cornick, 24 111. 455 ;
Trench v. Chenango Ins. Co. 7 Hill, 122; Farmers' Ins. Co.
Y.Snyder, 16 Wend. 481; Wood on Fire Insurance, sees.
138, 144; May on Insurance, sec. 159, et sea.
Although a policy refers to and makes the application a
part of it, yet only statements made strictly in answer to the
inquiries contained therein can be regarded as warranties.
Flanders on Fire Insurance, (2d ed.) 236, 237 ; Wood on Fire
Insurance, sees. 144, 160; Howard Fire and Marine Ins. Co.
v. Cornick, 24 111. 455 ; Hartford Protection Ins. Co. v. Harmer,
2 Ohio St. 461.
The description of the risk in the policy is not a warranty.
It simply names and identifies the premises. Gerhauser v.
North British Ins. Co. 7 Nev. 185; Scliultz v. Mercliants' Ins.
Co. 57 Mo. 331 ; Browning v. Home Ins. Co. 71 N. Y. 508 ;
Maker v. Hibernian Ins. Co. 6 Hun, 353 ; Billings v. Tolland
Ins. Co. 20 Conn. 139.
Messrs. Grant, Swift & Brady, for the appellee :
By the amendment a different plaintiff sued, but his suit .
was not brought within one year, and no recovery could be
had by the present plaintiff. Dunphy v. Riddle, 86 111. 22 ;
Crowl v. Nagle, id. 437 ; McGraw et al. v. Bayard et al. 96
id. 154; Miller v. Mclntyre, 6 Pet. 61; Illinois Central R. R.
Co. v. Cobb, 64 111. 140 ; King v. Avery, 37 Ala. (N. S.) 173 ;
Woodward v. Ware, 37 Me. 564.
There was a breach of warranty by the plaintiff, which
renders the policy null and void. The answers did not dis-
94: Thomas v. Fame Ins. Co. [Nov.
Brief for the Appellee.
close the fact that shingles were made upon the premises,
and the diagram was incorrect, and failed to show that part
of the building where the shingles were made, etc. These
omissions were fatal to the right of recovery, whether acci-
dental or intentional. De Hahn v. Hartley, 1 Term Eep.
343 ; Fowler v. Mtna Fire Ins. Co. 6 Cow. *673 ; Ripley v.
Mtna Fire Ins. Co. 30 N. Y. 136; Burritt v. Saratoga County
Mutual Fire Ins. Co. 5 Hill, 188; Mtna Ins. Co. v. Grube,
6 Minn. 82 ; Blumer et al. v. Phoenix Ins. Co. 45 Wis. 622 ;
Deicees v. Manhattan Ins. Co. 34 N. J. 244 ; Forbush v. Mas-
sachusetts Ins. Co. 4 Gray, 337.
Where the application is referred to as forming a part of
the contract, the statements therein are held to have the
force and effect of warranties. May on Insurance, (2d ed.)
sec. 159.
Where parties by express agreement make certain matters
inquired into material, it will not be open to question whether
or not they were actually so. Williams v. N. E. Mutual Fire
Ins. Co. 31 Me. 219 ; Ripley v. Mtna Ins. Co. 30 N. Y. 136 ;
Gahagan v. Union Mutual Ins. Co. 43 N. TI. 176 ; Common-
wealth Ins. Co. v. Monninger, 18 Incl. 352; Abbott v. Shawmut
Ins. Co. 3 Allen, 213 ; Wilson v. Conway Fire Ins. Co. 4 K. I.
141 ; Dewees v. Manhattan Ins. Co. 34 N. J. 247.
Where the application is prepared, signed and presented
by the owner, the company have a right to rely upon its cor-
rectness, and if it is incorrect in any material part, it avoids
the policy. Atlantic Ins. Co. v. Wright, 22 111. 474; Andes
Ins. Co. v. Fish, 71 id. 622 ; Lycoming Ins. Co. V. Rubin, 79
id. 403 ; Burritt v. Saratoga County Mutual Fire Ins. Co.
5 Hill, 188; Marshall v. Insurance Co. 7 Foster, 157; Cum-
berland Valley Mutual Protection Co. v. Schell, 5 Casey, 31 ;
Carpenter v. American Ins. Co. 1 Story, 57; Gould v. York
County Mutual Fire Ins. Co. 47 Me. 409.
1883.] Thomas v. Fame Ins. Co. 95
Opinion of the Court.
Mr. Justice Mulkey delivered the opinion of the Court :
Some time in the month of June, 1875, one T. M. Taylor,
a general insurance agent and broker, having an office at
Minosha, Wisconsin, called upon David J. Thomas, the ap-
pellant, at his place of business in the town of Colby, same
State, for*' the purpose of procuring Thomas' insurance on
his factory at that place, Taylor representing at the time
that he was the agent of the Fame Insurance Company, the
appellee, and other companies, naming them. The interview
resulted in appellant giving to Taylor an application for
§2000 insurance on the property, to be taken in such of the
companies represented by him as he might select. The fac-
tory in question was used for the manufacture of clothes-pins,
broom-handles and shingles, though there was nothing in the
name of the establishment to indicate that shingles were
made in it, it being simply called "Clothes-pin and Broom-
handle Factory." It appears, though, Taylor was well
acquainted with the factory, and knew that one department
of it was used for the manufacture of shingles. The appli-
cation was made out by Taylor on one of the printed forms of
the Planters' Insurance Company, and was addressed to the
Mercantile Insurance Company of Chicago, and the answers to
some of the interrogatories were written down by him from his
own knowledge of the business and premises, while the others
were given by Thomas himself. The questions in the printed
blank, which were answered partly by Taylor and partly by
Thomas, as just stated, had the following caption: "The
applicant will answer particularly the following questions,
and sign the same as descriptive of the premises, and form-
ing a part of the contract of insurance, and a warranty on
his part." The questions and answers following this cap-
tion, so far as deemed material to the controversy, are as
follows :
96 Thomas v. Fame Ins. Co. [Nov.
Opinion of the Court.
"I. Name of property.
"A. Clothes-pin and broom-handle factory.
"Building. How long and how wide is it ?
"A. 54x40, two-story ; engine-room, 24x36.
"Boiler-house. Where is it located?
"A. West side of building.
" [Show on diagram.]
"WJiat is the precise kind of goods made, and of what material?
"A. Clothes-pins and broom-handles."
Whether the application was either read to or by the ap-
pellant previous to his signing or to the issuing of the policy,
is a fact not clearly settled by the evidence. While on its
face the application contemplates, and in express terms re-
quires, a diagram to be made out as a part of the same,
showing the size, form, etc., of the building, and its relation
to the surrounding property within a hundred and fifty feet
distance, yet no such diagram was made out previous to ap-
pellant's signing the application, nor did he ever see one till
after the policy was issued, though one was prepared and
annexed to the application as a part of it, presumably by
Taylor, before it was submitted to the company. The dia-
gram, as made out and presented to the company, fails to
truly represent the character, shape or extent of the factory,
particularly that part of it which is used for the manufacture
of shingles.
The application, with the diagram annexed, being thus pre-
pared, was forwarded to one Eastman, an insurance broker
of Chicago, with directions to obtain the required insurance.
Eastman submitted the application to Southwick & Berne,
who were, respectively, the general insurance agents of appel-
lee and the Empire Fire Insurance Company. Upon a con-
ference between these agents the risk was agreed to be taken
and equally divided between the two companies, and policies
were issued accordingly. The one issued by appellee (being
the same now in suit) was, at the time of its execution, to-wit,
1883.] Thomas v. Fame Ins. Co. 97
Opinion of the Court.
on the 26th of June, 1875, delivered by Southwick to East-
man, the former paying to him at the time the customary,
brokerage fee. Eastman forwarded the policy to Taylor, who
subsequently delivered it to the assured. In August follow-
ing, appellant paid the premium ($50) to Taylor, who for-
warded it to Eastman, and the latter paid it to the company.
On the 26th of May, 1876, the insured premises were totally
destroyed by fire, and the loss was regularly adjusted by the
two companies, through Berne, the general agent of the Em-
pire Fire Insurance Company. By the terms of the policy
the loss, if any, was made payable to the Mann Brothers, of
Milwaukee, as their interest might appear. The appellee
having declined to pay the loss, this suit was originally com-
menced on the 26th of September, 1876, in the name of
appellant, for the use of Joseph and Henry Mann, but appel-
lant's name as plaintiff was subsequently, on the 18th of
November following, by permission of the court, stricken out,
and the names of the Manns substituted as plaintiffs, and
thereafter the suit was prosecuted in their names until the
4th of February, 1881, when, by leave of the court, the name
of appellant was restored as plaintiff in the cause, and the
records and files in the case were changed accordingly, since
which time the cause has proceeded in the name of appellant,
for the use of Joseph and Henry Mann, as originally com-
menced.
There have been two trials of this case in the Superior
Court of Cook county, where the action was commenced, in
each of which the plaintiff recovered a judgment for the face
of the policy, with legal interest. Both judgments, on appeal
to the Appellate Court, were reversed for alleged errors in
law, and the cause was remanded for further proceedings in
conformity with the views of that court, as expressed in the
several opinions filed therein. It appears, however, after
the last appeal had been thus disposed of, by a stipulation
between the parties it was agreed the remanding order should
7—108 IlIi.
98 Thomas v. Fame Ins. Co. [Nov.
Opinion of the Court.
be stricken out, so that the case might be brought directly
to this court for consideration, which was accordingly done,
and the case is now here on appeal.
It is claimed by appellant this case is governed by the Peck
case, 93 111. 139, and should therefore be reversed, for the
reasons stated in that case. This is a misapprehension.
That case holds that where there is a reversal of the judg-
ment of the trial court by the Appellate Court, and the latter
court fails to recite the facts as found by it in its final order
on appeal to this court, we must assume, by reason of such
non-recital of facts, the Appellate Court found the facts the
same way as the trial court, and that consequently its reversal
of the judgment of the trial court must have been for some
supposed error of law, and if, upon an examination of the
record of the trial court, there is in the judgment of this
court no such error of law warranting the reversal, as we
found in the Peck case, the judgment of the Appellate Court
will be necessarily erroneous, on the ground it reversed for a
supposed error of law which had no real existence. So in
this case, we must assume, by reason of the non-recital of
the facts in the final order of the Appellate Court, that court
found the facts the same way as found by the trial court, and
must therefore have reversed for some supposed error of law
in the proceedings of the trial court. If, upon an examina-
tion of the record by us, we should, as in the Peck case, find
no error of law, we should, under the authority of that case,
reverse the judgment in this case. It remains, therefore, to
inquire whether any of the errors relied on for a reversal in
the Appellate Court are well founded or not.
In the view we have taken of the case it will not be neces-
sary to consider all the questions raised by the assignment
of errors in the Appellate and this court. It is sufficient for
present purposes to determine whether, upon any of the errors
assigned in that court, the judgment of the trial court was
properly reversed.
1883.] Thomas v. Fame Ins. Co. 99
Opinion of the Court.
The policy in this case, like most of policies, contains a
clause requiring the action, in case of a loss, to be brought
within twelve months after its occurrence. Upon the substi-
tution of Thomas as plaintiff for the Manns, after the first
trial in the Superior Court, the company, proceeding upon
the theory this change in the parties was in legal effect a dis-
continuance of the original suit, by leave of the court filed a
special plea setting up the limitation in the policy in bar of
the action, the substitution as to parties having been made
more than one year after the loss. Whether the above facts
relied on in support of the plea constituted a defence to the
action, presents a question which occupies a prominent posi-
tion in appellee's brief, and the ruling of the trial court upon
it was one of the main errors relied on by the company for
a reversal in the Appellate Court, and it is equally relied on
here as sustaining the reversal there. We do not think the
facts shown in support of the plea sustain it, — or, in other
words, we do not think the limitation contained in the policy,
under the facts as shown by the record, affords any defence
to the action. The 24th section of the Practice act provides :
"At any time before final judgment in a civil suit amend-
ments maybe allowed on such terms as are just and reason-
able, introducing any parity necessary to be joined as 'plaintiff
or defendant, changing the form of action, and in any manner,
either of form or substance, in any process, pleading or pro-
ceeding, which may enable the plaintiff to sustain the action
for the claim for which it was intended to be brought, or the
defendant to make a legal defence. The adjudication of the
court allowing an amendment shall be conclusive evidence
of the identity of the action." In furtherance of the inten-
tion of the legislature a very broad and liberal construction
has been given to this section. It was evidently the inten-
tion of the legislature in adopting this provision, that no
amendment after the commencement of the suit and before
final judgment, resulting in a change or substitution of par-
100 Thomas v. Fame Ins. Co. [Nov.
Opinion of the Court.
ties to the action or in a change of the form of the action,
should be deemed a change of the action itself. (Sidway v.
Marshall, 83 111. 438 ; Teutonia Life Ins. Co. v. Mueller, 77 id.
22 ; Dickson v. Chicago, Burlington and Quincy 11. R. Co. 81
id. 215; Challenor v. Niles, 78 id. 78.) The only limitation
upon the right thus conferred is, that amendments are to be
allowed "on such terms as are just and reasonable," and
"to enable the plaintiff to sustain the action for the claim
for which it was intended to be brought, or the defendant to
make a legal defence. "
There is no just ground for the claim that by reason of
the amendment making new parties plaintiff there resulted
any change in the cause of action. The object of the suit
after the amendment was precisely the same as it was before,
namely, to recover the amount of the policy on account of
the destruction by fire of the insured premises, and so far as
we can see, assuming there was a right of recovery at all, it
was and is a matter of total indifference to the company
whether the recovery is in the names of the Manns or in the
name of Thomas for their use. Had some new claim or
cause of action been introduced into the suit by the amend-
ment, against which the Statute of Limitations had run, or
before the making of such amendment, the position of appel-
lee would be clearly right ; but such is not the case. By the
express terms of the statute the allowance of the amendment
is made conclusive of the identity of the action. If, then,
both the action and cause of action, before and after the
amendment, were precisely the same, as they certainly were,
then the limitation of one year in the policy clearly presented
no defence to the action, as it is conceded the original action
was commenced within the year.
As already appears from the caption of the application,
appellant was. required to answer, specifically, certain ques-
tions, "and sign the same as descriptive of the premises, and
forming a part of the contract of insurance, and a warranty
• 18S3.] Thomas v. Fame Ins. Co. 101
Opinion of the Court.
on his part." In addition to this the policy itself contained,
among others, the following provisions :
"Applications for insurance on property must be in writing,
and must specify the construction and materials of the build-
ing to be insured, * * * by whom occupied, whether as
a private dwelling, or how otherwise, its situation with respect
to contiguous buildings, and their construction and materials,
and whether any manufacturing is carried on within or about
it ; * * * and such survey and description shall be taken
and deemed to be a part and portion of the policy issued
thereon, and a warranty on the part of the insured.
"If any person effecting insurance in this company shall
make any misrepresentation or concealment touching the
risk to be assumed, * * * this policy shall be void. "
In view of these provisions in the application and policy,
and the additional fact that appellant, in answer to the ques-
tion in the application, "What is the precise kind of goods
made, and what material?" failed to make known that one
part of the building was used for the manufacture of shingles,
the trial court was asked by the company to give to the jury
the following instruction:
"If the jury believe, from the evidence, that there was a
shingle mill connected with the premises insured, and that
this fact was not disclosed by the application upon which
the policy in suit issued, and was not known to the defendant
at the time the policy was issued, or at any time before the
fire, then the plaintiff can not recover."
— Which the court refused to do, but gave as a substitute for
it the following modified instruction :
"If the jury believe, from the evidence, that there was a
shingle mill connected with the premises insured at the time
the application ivas signed by plaintiff, and that this fact was
not disclosed by the application upon which the policy in
suit issued, and was not known to the defendant or its agents
102 Thomas v. Fame Ins. Co. [Nov.
Opinion of the Court.
at the time the policy was issued, or at any time before the
fire, and that the existence and use of said shingle mill mate-
rially affected the risk under said policy, and if the jury farther
believe, from the testimony in this cause, that the plaintiff,
Thomas, or his agent, intentionally suppressed from his written
application the fact of the existence and use of said shingle mill,
knowing it to be material to said risk, then the plaintiff can
not recover."
— To the giving of which, as modified, the company at the
time excepted. The additions and modifications made by
the court to the instruction as asked, are for convenience put
in italics.
The instruction as modified we regard as clearly erroneous.
It ignores altogether the fact that the answers of the assured
to the specific interrogatories contained in the application
are therein declared to be made and signed "as descriptive
of the premises, and forming a part of the contract of insur-
ance, and a warranty" on the part of the assured. It also
leaves out of the question altogether the diagram or survey
accompanying the application, which, as we have already
seen, fails to truly represent the insured premises, especially
the part of them used for the manufacture of shingles, although
the policy in express terms declares "such survey and descrip-
tion shall be taken and deemed to be a part and portion of
the policy issued thereon, and a warranty on the part of the
assured." The survey and description of the property being
thus made an express warranty by the assured, if false it
was wholly unimportant whether they were material to the
risk. Nevertheless, the jury were told by this instruction,
before the company could avail itself of the defence afforded
by the plaintiff's breach of the warranty it was incumbent
on the company to show, or for it to otherwise appear from
the evidence, the risk was thereby materially affected. This
view is certainly opposed to the general current of authority
on the subject, and it can not, therefore, receive our sanction.
1883.] Thomas v. Fame Ins. Co. 103
Mr. Justice Scott, dissenting.
Columbia Ins. Co. v. Cooper, 50 Pa. St. 331 ; Denny v. Con-
way Ins. Co. 13 Gray, 492 ; Jefferson Ins. Co. v. Cotheal, 7
Wend. 72; Wall v. Howard Ins. Co. 14 Barb. 383; Shela\on
v. Hartford Ins. Co. 22 Conn. 235 ; Commonwealth Ins. Co. v.
Monninger, 18 Ind. 352 ; Barteau v. Phoenix Ins. Co. 67 N. Y.
595 ; Newcastle Ins. Co. v. McMorran, 3 Bowl. P. C. 225 ;
Styles v. Northwestern Ins. Co. 2 Curt. 610 ; Wetherell v.
Maine Ins. Co. 49 Maine, 200 ; Anderson v. Fitzgerald, 4
H. L. Cases, 484; Andes Ins. Co. v. Fish, 71 111. 620.
The giving of this instruction being a material error upon
a vital point in the case, fully warranted the Appellate Court
in reversing the judgment of the trial court as it did.
Judgment affirmed.
Mr. Justice Scott, dissenting:
Originally this suit was brought by David J. Thomas, for
the use of Joseph and Henry Mann, on a policy of insurance
issued by the Fame Insurance Company, but subsequently,
on leave given by the court -for that purpose, Joseph and
Henry Mann were substituted as plaintiffs, and from that
time until the 4th day of February, 1881, the suit progressed
in their names. On the day last mentioned leave was given
to restore Thomas as plaintiff, for the use of Mann Bros., as
the suit was originally commenced, which was done, and the
declaration amended by adding a count in indebitatus assump-
sit. To the declaration as thus amended defendant pleaded
the general issue, and a special plea averring the identity of
the causes of actions in both counts, and that it was expressly
provided in the policy on which the suit was brought, that
no action of any kind, either at law or in equity, for the
recovery of any claim on the policy, should be maintainable
unless such suit should be commenced within twelve months
next after such loss or damage under the policy had occurred.
The replication filed traverses the identity of the causes of
action as set forth in the several counts of the declaration,
104: Thomas v. Fame Ins. Co. [Nov.
Mr. Justice Scott, dissenting.
and avers the suit was commenced within twelve months next
after the loss under the policy was sustained. On the first
trial in the Superior Court plaintiff recovered a judgment
against the company for the amount due on the policy. That
judgment, on the appeal of the company, was reversed by
the Appellate Court, and the cause remanded. A second
trial resulted, as before, in a judgment for plaintiff, which
was also reversed by the Appellate Court and the cause re-
manded, but afterwards, by consent of parties, the court
vacated the order previously made remanding the cause, and
thereupon plaintiff prayed and was allowed an appeal to this
court.
It can not be known, from anything appearing in this
record, for what reason the Appellate Court reversed the
judgment of the Superior Court, — whether it was on the
merits of the case as made by the evidence, or on account
of giving instructions for plaintiff or refusing instructions
asked for defendant. If it were for the latter reason, it is
obvious plaintiff can not be permitted to insist in this case
it was error in the Superior Court to give instructions asked
on his own behalf, nor that it was error to refuse instructions
asked by defendant, as that is a matter that does not affect
him injuriously, but favorably. On looking into the record
of the rulings of the Superior Court on questions of law, it is
not seen that any of its decisions were prejudicial to plaintiff,
and whether they were to defendant can make no difference,
as it is not complaining, and can not complain in this court
on the present appeal, no cross-errors having been assigned.
The errors assigned in this court are, that the Appellate Court
erred in reversing the judgment of the Superior Court and
in awarding costs against plaintiff, and in not affirming the
judgment of the Superior Court and awarding costs against
defendant. As has been seen, defendant on this appeal is
not complaining of any decision made by the Appellate Court,
and it must be understood as acquiescing in that decision,
1883.] Thomas v. Fame Ins. Co. 105
Mr. Justice Scott, dissenting.
whatever it was. (Fogarty v. Beam, 100 111. 366.) It is
equally obvious the party appealing to this court can not com-
plain of any ruling of the Appellate Court on the instructions
given or refused at the trial, as they did not and could not
affect his interests in the trial court. As before remarked,
the instructions of the trial court were all favorable to him.
The action of the Appellate Court in vacating the remand-
ing order must be treated as in effect rendering a final judg-
ment in that court against plaintiff on the merits of the case
as made by the evidence, without regard to any action or
ruling of the Superior Court, otherwise there could be no
appeal to this court from its decision. (Harzfeld v. Converse,
105 111. 534.) If it were merely a judgment of reversal, and
not a final judgment, it is plain no appeal would lie. By the
Practice act the Appellate Court, in cases of appeal or writ
of error, may render final judgment and cause execution to be
issued. Unless that was done in this case no appeal would
lie, and as the parties themselves have &> treated the judg-
ment of the Appellate Court, this court may also regard it as
a final judgment, in the sense those terms are used in the
statute. It is clear, then, that the only question that can be
considered on the present appeal is, whether the Appellate
Court erred in reversing the judgment of the Superior Court,
and in rendering final judgment against plaintiff upon the
merits of the case as made by the evidence.
In cases of this kind no assignment of error is allowable
that will call in question the finding of the inferior or Appel-
late Court on controverted questions of fact. The finding of
the Appellate Court upon questions of fact in such cases is
therefore conclusive upon this court. But on turning to the
transcript of the record of the Appellate Court, ii will be seen
that court have embodied no findings of fact in their judg-
ment or final order, and hence, according to the decision in
Coalfield Coed Co. v. Peck, 98 111. 139, it must be understood
the Appellate Court did not find the facts of the case to be
106 Thomas v. Fame Ins. Co. [Nov.
Mr. Justice Scott, dissenting.
other or different than they were found by the trial court to
be. In Lake Erie and Western R. R. Co. v. Zoffinger, 107
111. 199, it was held, where there is a conflict in the testi-
mony as to the material facts, and the jury find the issues
for plaintiff, that finding implies a finding of every fact the
evidence tends to establish in favor of plaintiff, and that the
affirmance of the judgment by the Appellate Court implies a
finding of the facts in the same way, which latter finding is,
of course, conclusive on the Supreme Court. In that case
there was evidence tending to establish certain facts, and it
was further held, that conceding the facts to be as they must
have been found, a clear case was made, — that is, under the
law, — in favor of plaintiff, where" a recovery was justified.
The question then recurs, was it error in the Appellate Court
to render final judgment against plaintiff on the facts as they
must have been found by the trial court ? And that is the
only question that can be considered on this appeal, as the
case now comes to*this court.
The logic of the opinion of the majority of the court, as I
understand it, is, that because the trial court refused a proper
instruction asked by defendant, that would justify the Appel-
late Court in rendering final judgment against plaintiff, as
was done, although on the facts, as the evidence tends to
establish them in his favor, he might be entitled to a judg-
ment under the law, if properly applied, — at least this court
will not consider whether on the facts, as they must have
been found, the law was for plaintiff, and he should have
judgment. If that is the decision of this court I most respect-
fully dissent from the conclusion reached — a conclusion, with
all due respect to the majority of the court, it seems to me,
that has but little in its support, either in reason or authority.
In the first place, the action of the court in refusing the
instruction complained of at the trial, is a matter over which
plaintiff had no control, and it was certainly not his fault the
court refused the instruction ; and second, I understand the
>
1883.] Thomas v. Fame Ins. Co. 107
Mr. Justice Scott, dissenting.
conclusion reached is in conflict with the decisions of this
.court in Harzfeld v. Converse, supra, Lake Erie and Western
R. R. Co. v. Zojinger, supra, Schertz v. Indianapolis, Bloom-
ington and Western R. R. Co. 107 111. 577, and Schrcedcr v.
Trade Ins, Co. 109 id. 157. In all of these cases, assuming
the facts to he as they must have been found by the trial
and Appellate courts, it was considered as a question of law
whether the plaintiff was entitled to recover. In Harzfeld v.
Converse, the facts as found by the Appellate Court were
embodied in the final order, but it can make no difference
whether they were found in that way or by a judgment of
affirmance, which implies a finding of the facts the same as
they were found by the trial court. In Lake Erie and West-
ern R. R. Co. v. Zoffinger, the facts were understood to be
found by a judgment of affirmance in the Appellate Court,
and it was held as a question of law that on the facts as they
must have been found the plaintiff was entitled to recover.
I understand the case of Coalfield Coal Co. v. Peck, 105 111.
529, is in entire harmony with the cases cited.
In the light of these decisions I propose to consider
whether the facts in this case which the evidence tends to
establish in favor of plaintiff, and which, it must be under-
stood, were found in his favor by the trial and Appellate
courts, show a cause of action in his favor. I am of opinion
they do, and will state some of the reasons on which my
opinion is based. . *
As respects the limitation clause of the policy, as to the
time in which suit" should be commenced to recover any loss
or damage under the policy, and which was pleaded as a de-
fence in the trial court, I concur in the views expressed in
the opinion of the majority of the court. Without discussing
that question further, it is sufficient to say I concur with the
court in holding it is no defence to the present action, as it
was commenced in apt time. On this point in the case I
understand all the members of the court agree.
108 Thomas v. Fame Ins. Co. [Nov.
Mr. Justice Scott, dissenting.
It will be seen the policy provides applications for insur-
ance must be in writing, and must specify the construction^
and materials of the building to be insured, or containing the
property to be insured, by whom occupied, whether as a pri-
vate dwelling or otherwise, and whether any manufacturing
is carried on within or about it, and that such "survey and
description" shall be taken and deemed to be a part and por-
tion of the policy to be issued thereon, and a warranty on
the part of the assured. Another clause of the policy declares
if any person effecting insurance in the company shall make
any misrepresentation or concealment touching the risk to
be assumed, the policy shall be void. The application in
this case discloses the fact the building insured was used for
manufacturing "clothes-pins and broom-handles, " and the
defence most insisted on is the alleged omission of the assured
to disclose the fact that a portion of the building was used,
at the time the insurance was effected, for the manufactur-
ing of shingles. As before remarked, the Appellate Court,
by their judgment or final order, did not find the facts to be
different from what they were found by the trial court, and
as that court found the issues for plaintiff, this court must
presume the jury found every fact material to the issue in
favor of plaintiff, that the evidence tends to establish. It
will therefore be necessary to look into the record to see
what facts the evidence establishes, or tends to establish. It
appears, from uncontradicted testimony, that one Taylor, an
insurance agent residing at Minosha, came to plaintiff and
wished to insure the property that was afterwards included
in the policy ; that he stated over a number of companies
he had, and among others he mentioned the Fame Insurance
Company of Philadelphia, defendant in this suit ; that he
(Taylor) examined the premises, and was familiar with all the
kinds of manufacturing being done in the building ; that the
application for insurance was made out by Taylor on a blank
of the Planters' Insurance Company, and was addressed to
1SS3.] . Thomas v. Fame Ins. Co. 109
Mr. Justice Scott, dissenting.
the Mercantile Insurance Company of Chicago ; that assured
answered all the questions put to him by Taylor truthfully,
so far as he knew, and noticed the answers when he signed
the application ; that Taylor did not ask plaintiff the ques-
tion contained in the application, "Name the property," to
which the answer is written, "Clothes-pin and broom-handle
factory;" that he did ask, "How wide was it," (the building,)
and plaintiff answered, "54x40;" that he did not ask, "What
is the precise kind of goods made, and of what material ; "
that he did not ask any question of that sort ; that Taylor
was around the premises before he took the application, and
knew that plaintiff was manufacturing shingles in the build-
ing ; that plaintiff looked over what Taylor asked, and looked
over his own answers ; that he looked over the written answers
briefly, but he could not say he looked at every one of them ;
that when Taylor had filled it up "he turned the application
over to him to sign it, and he did sign it ; " that at the time
he signed it there was a kind of plat on the back of the ap-
plication, but no diagram; that Taylor, when he took the
application, represented that he was an agent of the defend-
ant company ; that plaintiff knew Taylor was in the insur-
ance business at Minosha, and had an office there ; that he
received the policy from Taylor in about a week or ten days
after the application was made, and paid him the premium
($50) about thirty days thereafter. It also appears that
Taylor sent the application to Eastman, an insurance broker
at Chicago; that Eastman gave it to the agent of defendant
at Chicago ; that such agent issued the policy and delivered
it to Eastman, and that Eastman sent it to Taylor, who, as
has been seen, delivered it to plaintiff.
Both parties disclaim the agency of Taylor in the premises.
Without determining whether he should be regarded in law
as the agent of defendant, it is quite certain he was not the
agent of plaintiff, and plaintiff is in no way answerable for
any misconduct on his part. His position was that of an
110 Thomas v. Fame Ins. Co. [Nov.
Mr. Justice Scott, dissenting.
insurance solicitor, and he acted in this transaction in that
capacity. It was known to the agent acting on behalf of de-
fendant that Taylor was an insurance agent. It does not
appear the agent of defendant, when he issued the policy,
knew the application for it had been taken by Taylor, but he
did know it came to him from Eastman, who was an insur-
ance broker residing in Chicago. When insurance companies
take applications for insurance from brokers in that business,
they will not be permitted to treat such brokers as the agents
of the assured, unless it clearly appears that relation existed.
The better rule is, they shall be required to rely upon the.
integrity of such brokers, and if they practice any fraud upon
the companies without the connivance of the assured, or any
wrongful conduct on his part, the companies must bear the
loss. All risk can be avoided by the companies refusing to
take applications for insurance from any brokers except such
as may be known to be entirely responsible. Any other rule
would make it possible to practice great frauds on parties
wishing insurance. Applying this reasonable rule to the facts
of this case, if Taylor did anything that was wrong in taking
the application upon which the policy was issued, his mis-
conduct should not be imputed to plaintiff as wrongful con-
duct on his part.
It is said the diagram on the back of the application for
insurance was not accurate, and that defendant's agent was
deceived by it. That may be true, but whose fault was it ?
It does not appear it was the fault of plaintiff, for he testified
there was no diagram attached to it when he signed the ap-
plication, and the jury must have so found, as no witness
contradicts him in that respect. Nor does it appear who
made the diagram ; but as it was not made by or authorized
by plaintiff, it is immaterial, so far as this case is concerned,
who made it.
But a more material inquiry is, whether plaintiff is respon-
sible for the omission to state in the application that shingles
1883.] Thomas v. Fame Ins. Co. Ill
Mr. Justice Scott, dissenting.
were also manufactured in the building to be insured. The
application does show that "clothes-pins and broom-handles"
were manufactured in the building. This answer was written
by Taylor himself, without any question having been put to
plaintiff on that subject. But the answer as written was
true, and there was no breach of the warranty implied in
every application for insurance in that respect. So far as
plaintiff answered questions propounded to him by Taylor,
it does not appear that he misrepresented anything, or made
any false statements. Was he guilty of any concealment
touching the risk to be assumed? The only complaint in
this regard is the omission to state that shingles were also
manufactured in the building about to be insured. The
assured was not asked to make any statement in that regard,
and gave none. It was known to Taylor, who solicited the
risk, that shingles were manufactured in the building, and
plaintiff may have supposed it was not necessary to state
that which was fully known to the party acting. There is
not a single fact established by the evidence that tends to
show the assured did not act in the utmost good faith in
making the application on which the policy was issued. The
rule of law is, that when the assured makes a full and fair
disclosure of all the facts that would materially affect the
risk, so far as the company wish to interrogate him, and
the agent, on behalf of the company, writes false answers to
the questions propounded, without the knowledge of assured,
and assured in good faith signs the application, he will not
be responsible for any wrongful conduct of the agent. As
before remarked, the broker taking the application in this
case was in no sense the agent of the assured, and he was in
no way responsible for any wrongful conduct of which he
may have been guilty, if he wTas. guilty of any. Here the
company relied on the work done by the broker, and adopted
it as the basis of the insurance contract. In such cases there
is much more reason for holding the broker was the agent of
112 Thomas v. Fame Ins. Co. [Nov.
Mr. Justice Scott, dissenting.
the company than of the assured, and if either party is to
suffer from his misconduct, it should be the company that
adopted his work. As has been seen, it appeared on the face
of the application that "clothes-pins and broom-handles"
were manufactured in the building on which the risk was to
be taken. It will be noticed the application contained a
question following the one under which was written, "Clothes-
pins and broom-handles, " "Is there any other business carried
on in the building or buildings?" That question was not
propounded to assured, and was not answered at all. It
does not appear assured knew the application contained any
such question. The agent of defendant says he read the ap-
plication very carefully and thoroughly, and if so he must
have known before he issued the policy that question was
not answered. Below the signature of applicant there was a
printed note, as follows: "Every question must be answered,
or the application will be returned. " Had the agent to whom
the application was delivered observed the direction there
given, it would have been his duty to return the application
to applicant, that he might have an opportunity to answer
the question, if it had been inadvertently overlooked. This
would have been nothing more than fair dealing with appli-
cant. The provision as to the unanswered question at the
bottom of the application distinctly notified the company if
they did not wish to issue the policy without that question
being answered, the application should be returned to the
applicant. Omitting to return the application was equiva-
lent to an express waiver of an answer to that question.
Had it been returned, and the attention of the applicant
called to it, no doubt his answer would have disclosed the
fact shingles were also manufactured in the building. So
far as the application disclosed the kind of goods manufac-
tured in the building it was entirely accurate, and if the
company desired fuller information, it should have returned
the application for an answer to the question not answered,
1883.] C, E. I. & P. By. Co. v. Clark. 113
Syllabus.
which would have given the necessary information. It may
well be concluded the company was willing to take the risk
without that question being answered. If so, it was their
privilege, and if loss ensued on that account, it should be
attributed to their want of due care in that regard. A mere
omission to answer a question is not a warranty that any-
thing remains to be answered, and so in case of a partial
answer it has been held the warranty can not be. extended
past the answer. Cases sustaining this view of the law are
Delleber v. Home Life Ins. Co. 69 N. Y. 256; Liberty v. Hall
Ins. Co. 7 Gray, 261.
Assuming, as must be done, the jury found all the facts in
favor of plaintiff the evidence tends to establish, I am of
opinion the law is for plaintiff, and that the final judgment
against him in the Appellate Court is erroneous, and should
be reversed.
Chicago, Eock Island and Pacific Eailway Company
v.
Catharine Clark, Admx.
Filed at Ottawa November 20, 1883.
1. Evidence — habits of person to show he exercised due care. Where
a brakeman was killed while attempting to couple cars, no one being present
or knowing how the accident occurred, in a suit by his personal representa-
tive to recover damages of the railway company, evidence of his prior habits
as to care, prudence and sobriety is admissible, as tending to prove that the
deceased was prudent, cautious and sober at the time of the injury. But
if there were witnesses who saw the transaction, and can describe how the
accident took place, such evidence would not be admissible.
2. Same — habits of- other persons on question of care. In an action
by an administratrix to recover for causing the death of her intestate by neg-
ligence while engaged in coupling cars, evidence of the usual mode of coup-
ling and uncoupling cars at the same place by others is inadmissible. What
others did, or were in the habit of doing, does not tend to prove the issue as
to due care by the deceased.
8—108 III.
114 C.,.E. I. & P. Ey. Co. v. Clark. [Nov.
Brief for the Appellant.
3. Same — practice — when admissible for one purpose but not for others.
If evidence is admissible for any purpose it must be received, and the party
against whom it is admitted, if it tends to mislead on some other question,
is entitled to have it limited by instruction to the purpose for which it is
admissible.
4. Master and servant — railroad not bound to inform servant of
danger in the service. The law does not impose on a master the duty of
informing his servants of all dangers in and about the premises where they
are required by his authority to perform labor. A railway employe is pre-
sumed to understand the nature and dangers of his employment when he
engages in the service, and to assume all the ordinary hazards of the service.
5. Same — master must know of danger before he is required to inform
servant. In an action by a servant to recover damages from his master on
the ground of negligence, the servant is not entitled to recover because the
service required at a particular place was dangerous, and the master failed
to inform the servant of that fact, in consequence of which he was injured,
when it does not appear from the evidence that such place was, in fact, more
dangerous than other places, or that the master knew that it was dangerous.
6. Negligence — not learning that service at a place is dangerous. An
instruction on a question of comparative negligence asserted, that if the de-
fendant's railroad track and platform are dangerous, and the defendant, by
reasonable care, could have learned the fact, and the person injured could
not, by reasonable care, have learned they were dangerous, and that the
injury was caused thereby, the defendant was liable: Held, that the same
was flatly contradictory, and calculated to confuse and mislead. If reason-
able care would have disclosed the fact of danger to one party, it would have
done so equally to the other.
7. Same — comparative — instruction not stating rule accurately . Where
an instruction speaks of negligence and also gross negligence of the defend-
ant, and then refers to slight negligence of the person injured as compared
with the defendant's negligence, it is too loose and inaccurate in not stating
definitely which degree of negligence of the defendant the jury should com-
pare with the injured party's negligence.
Appeal from the Appellate Court for the Second District ; —
heard in that court on appeal from the Circuit Court of Peoria
county; the Hon. N. M. Laws, Judge, presiding.
Mr. J. C. Hutchins, Mr. Thomas F. Withkow, and Mr.
H. W. Wells, for the appellant :
The court erred in allowing the witnesses to testify as to
the habits of the deceased as to care, caution and sobriety.
1883.] C, K. I. & P. By. Co. v. Clark. 115
Brief for the Appellant.
Plaintiff should only have been permitted to prove such facts
as would justify a reasonable inference that at the time
deceased exercised ordinary care. Chicago, Burlington and
Quincy R. R. Co. v. Lee, 60 111. 501 ; Tenny v. Tattle, 1 Allen,
185; Davis v. Oregon and C. R. R. Co. id. 187.
The court also erred in permitting the plaintiff to prove
that there was a general custom among railroad men to
couple and uncouple cars on the inside of curves. Berg v.
Chicago, Milwaukee and St. Paul R. R. Co. 50 Wis. 419;
Kroyes v. Chicago, Rock Island and Pacific R. R. Co. 32 Iowa,
363 ; Ferguson v. Central Ry. Co. 12 N. W. Kep. 293 ; Ormund
v. Central Iowa Ry. Co. 13 id. 54; Hamilton v. Des Moines
Valley R. R. Co. 36 Iowa, 38.
The admission of this evidence was error, because it jus-
tified a man in performing an unsafe and dangerous duty
where there was room enough to perform it elsewhere with
safety. Chicago and Northwestern R. R. Co. v. Donahue, 75
111. 106; Foster v. Chicago and Alton R. R. Co. 84 id. 164;
Pennsylvania Coal Co. v. Conlan, 101 id. 93.
The plaintiff's first instruction declares that the master is
bound to advise his employes or servants of any and all dan-
ger in and about the premises where they are required to
work, and that he is liable if he does not do so. This is not
the law. The rule is, that an employe assumes, and is pre-
sumed to know, the ordinary hazards of his employment.
Indianapolis, Bloomington and Western R. R. Co. v. Flanigan,
77 111. 370 ; Schadewald v. Milwaukee, L. S. and W. Ry. Co.
13 N. W. Eep. 460; Homier v. Illinois Central R. R. Co. 15
111. 550 ; Illinois Central R. R. Co. v. Cox, 21 id. 20 ; Toledo,
Wabash and Western Ry. Co. v. Durkin, 76 id. 395 ; Lake
Shore and Michigan Southern R. R. Co. v. McCormick, 74
Ind. 440; Toledo, Wabash and Western Ry. Co. v. Black, 88
111. 112; Richardson v. Cooper, id. 323; Baylor v. Del., Lack.
and W. R. R. Co. 11 Vroom, 23.
116 C, E. I. & P. Ey. Co. v. Clark. [Nov.
Brief for the Appellee. Opinion of the Court.
Mr. George A. Wilson, for the appellee :
The failure of appellant to either increase the distance
between the cars and platform, so that its employes can dis-
charge their duties with reasonable safety, or to lessen the
intervening space, so that its employes can stand upon the
platform and discharge their duties, unquestionably convicts
appellant of gross negligence. Besides, the curve there was
so great that the employes were compelled to couple and
uncouple cars on the inside of the curve. As to negligence
in this respect, see Illinois Central R. R. Co. v. Walsh, 51
111. 183; Chicago and Alton R. R. Co. v. Wilson, 63 id. 16T;
Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 id.
272 ; Chicago and Iowa R. R. Co. v. Russell, 91 id. 298 ;
Chicago and Alton R. R. Co. v. Pondrom, 51 id. 333.
• All the proof showed that the deceased was a temperate,
steady, careful and prudent man. He discharged his duties
well, and no complaint was ever made to the contrary.
Mr. Justice Walker delivered the opinion of the Court :
Appellee brought this action in the circuit court of Peoria
county, against appellant, to recover for the death of her
husband, J. H. Clark, averred to have been caused by negli-
gence of the railroad company. It appears that deceased
was a brakeman in the employment of appellant ; that at
Davidson's quarry, near the city of Joliet, he was injured
in attempting to couple cars at a side-track and platform for
loading cars with stone ; that in coupling them he got between
the platform and cars, and his lantern, from some cause, got
between him and the cars, and it was so pressed against him
that he received internal injuries, from which he died. The
negligence averred is, that the track was constructed too near
or close to the platform ; that the distance between the cars,
when on the track, and the platform, did not exceed ten
inches; that on the second day of July, 18T9, in the night,
1883.] C, R. I. & P. By. Co. v. Clark. 117
Opinion of the Court.
Clark, in the line of his duty, exercising due care, was en-
gaged in coupling a car loaded with stone, and the defend-
ant's servants in charge of the train handled it so negligently,
together with the improper location and construction of the
platform, that the train struck Clark with great force, and
he was thereby killed. It is averred that deceased did not
know of the dangerous character of the place, and was igno-
rant of the distance or space between the platform and cars,
but the defendant knew it was dangerous, but failed to notify
deceased of the fact. On a trial in the circuit court plaintiff
recovered a judgment. Defendant appealed to the Appel-
late Court for the Second District, where the judgment was
affirmed, and defendant appeals to this court.
It is first insisted that the circuit court erred in admitting
evidence of the habits of deceased as to care, prudence and
sobriety. Appellee, in her declaration, averred, as she was
required to do, that deceased was in the exercise of due care
at the time he sustained the injury of which he died, and as
no person was present, or knew how the accident occurred,
we think this evidence tended to prove that averment. If
he was habitually prudent, cautious and temperate, it tended
to prove he was so at the time of the injury, which, with the
instinct of self-preservation, would be evidence for the con-
sideration of the jury in determining whether he was in the
exercise of care. Had there been witnesses who saw the in-
fliction of the injury, the jury could then have determined
from such evidence whether he was careful or negligent, and
in such a case this evidence would not be admissible. When
there are no witnesses to describe such an occurrence, the
defendant would surely have the right to prove the person,
was habitually rash, imprudent and intemperate, to repel
the presumption that he was in the exercise of proper care
at the time he received the injury. If evidence is admissible
for any purpose, it must be received, and the party against
whom it is admitted, if it tends to mislead on some other
118 C, R. I. & P. By. Co. v. Clark. [Nov.
Opinion of the Court.
question, is entitled to have it limited, by instruction, to the
purpose for which it is admissible.
It is next urged that the trial court erred in admitting
evidence as to the usual mode of coupling and uncoupling cars
at that switch. One of the issues being tried was, whether
deceased performed his duty with such negligence as to pre-
clude a recovery. He was bound to use care, or no recovery
can be had, and what others did or were in the habit of doing
did not tend to prove that issue. Such a course may have
been careless, or even reckless, and if so, it did not justify
him in omitting the observance of care. We therefore think
that such evidence did not tend to prove care on the part of
deceased, and the court erred in its admission.
It is claimed the first instruction is erroneous. It, among
other things, informs the jury that it is the duty of the master
to inform his servants of all danger in and about the prem-
ises where they are required, by his authority, to perform
labor. This was manifestly wrong. Railroad employes, as
all the books lay down the doctrine, assume the ordinary
risks and hazards of the employment. The presumption is
that the employe understands the nature and dangers of the
employment when he engages in the service, and if not, that
he will inform himself. It would be wholly impracticable for
railroads and manufacturers to employ men of experience,
to inform each of the hands that any particular act he is
required to perform is dangerous. It would be ruinous to
such bodies to hire a person to accompany every brakeman
and other employes, to inform them of danger in the perform-
ance of every act of duty, or of the danger in the manner of
its performance. It is impossible that the law can ever im-
pose such requirements, — and that is what this instruction
in substance asserts as a legal requirement.
The instruction further informs the jury, that if the em-
ployer knows of such clanger, and the employes do not, and
are unable to learn the danger by reasonable care and dili-
1883.] C, E. I. & P. By. Co. v. Clark. 119
Opinion of the Court.
gence, and the employer fails to advise the employes of the
danger, he is in such case liable for any injury they sustain ;
and if the jury believe, in this case, that the stone platform
was dangerous, and the defendant failed to advise deceased
thereof, and the deceased did not know of such danger, and
could not have learned it by the use of reasonable care, and
he was thereby injured, from which he died, then the jury
should find the defendant guilty. This branch of the instruc-
tion is erroneous, and misstates the law. Moreover, there
is no evidence tending to prove the company had any notice
that the platform was dangerous. On the contrary, it had
been used for fourteen years in the same condition it was
then in, and many thousand cars had been coupled and
uncoupled at that place, and on the same side of the track
where deceased was injured, and this was the first accident
of the kind that had ever occurred on that switch. But the
instruction announces that appellant was liable whether the
company knew or not that it was dangerous. It informs
the jury that if it was dangerous they should find appellant
guilty. This instruction was highly calculated to mislead
the jury, and should not have been given.
The fourth of appellee's instructions is flatly contradictory,
and calculated to confuse and mislead. It asserts that if the
track and platform were dangerous, and the company, by
reasonable care, could have learned the fact, and deceased
was without knowledge, and could not, by reasonable care,
have learned it was dangerous, and deceased received his
injury thereby, they should find the defendant guilty. If
deceased could not learn that the place was dangerous by
reasonable care, how can appellant be held liable because it
did not learn the fact? Eeasonable care only could, when
exercised by the company, reach the same results that would
be attained by the use of the same care used by deceased.
If his care and diligence could not learn that it was dan-
gerous, it is unreasonable to hold appellant liable, when,
120 . Spitler v. Spitler. [Nov.
Syllabus.
by the use of the same care, it could not learn there "was
danger.
The seventh of appellee's instructions is loosely drawn, and
is not accurate in its statement of the law. It first asserts
that if appellant was guilty of negligence, as averred in the
declaration, and if deceased was guilty of negligence, (if they
found from the evidence that appellant was guilty of gross
negligence,) then it can not relieve itself from liability by
showing that deceased was also guilty of negligence, if his
negligence was slight as compared with that of appellant.
The instruction speaks of negligence, and also of gross negli-
gence, of appellant, and then refers to slight negligence of
deceased as compared with appellant's negligence. Which
degree of negligence of appellant are the jury to compare
with negligence of deceased ? But above and beyond this,
there was no evidence tending to show gross negligence of
appellant. There was therefore no evidence upon which to
base the instruction. It was therefore error to give it.
For the errors indicated the judgment of the Appellate
Court is reversed, and the cause remanded.
Judgment reversed.
John P. Spitler
v.
Tamson E. Spitler.
Filed at Ottawa November 20, 1883.
1. Alimony— founded on husband's duty to support wife. The right of
a wife to permanent alimony under the general law, aside from the statute, is
founded on the duty of the husband to support her, so that when the latter
duty ceases the right to alimony also ceases. Hence it is generally held, in
the absence of statutory provision, that when the husband obtains a divorce
for the wife's misconduct, she will not be entitled to alimony.
1883.] Spitler v. Spitler. 121
Brief for the Appellant.
2. Same — duty of husband to support his wife. The common law duty
of a husband to support his wife is not absolute. He is bound to support her
at their common home, and not under another's roof, unless his improper
conduct has forced her to seek shelter elsewhere. If she abandons her home
without just cause, the right to support from her husband at once ceases.
3. Same — under the statute— extent of the wife's right to alimony. A
decree of divorce against a wife for her misconduct, under our statute does
not necessarily deprive her of the right to alimony in all cases, as it would
but for the statute. But on the other hand, it does not follow that the
divorced wife would be entitled to alimony when her conduct has been grossly
improper, and its allowance is not required for the support of their common
offspring.
4. It was not the object of the legislature in adopting the provision of the
statute relating to alimony, (Rev. Stat. 1874, chap. 10, sec. 18,) to abrogate
the general principles or policy of the law relating to such subject, but rather
to clothe the court with power to mitigate occasional hardships that might
otherwise occur.
5. Same — in the particular case. "Where a husband obtained a decree of
divorce against his wife for desertion and adultery, and it appeared that on
the marriage she brought no means with her; that her husband had always
been a good provider, and reasonably kind and indulgent under the circum-
stances; that their children, living, were all grown and married, and that
some four or five years before the filing of the bill, she, without any cause,
excuse or justification whatever, deliberately abandoned her husband and
home, for the sole purpose of improving her opportunities of carrying on
criminal relations with her paramour, it was held, that the wife was not
entitled to any allowance for alimony.
Appeal from the Appellate Court for the Second District ;
— heard in that court on appeal from the Circuit Court of
Stephenson county ; the Hon. William Brown, Judge, pre-
siding.
Mr. James I. Neff, and Mr. J. H. Stearns, for the appel-
lant:
By our statute the allowance of alimony on divorce is
made discretionary with the court. (Kev. Stat. 1874, p. 421,
sec. 18.) But this is a judicial discretion, subject to review
in an appellate court, so that justice may be done. Stillman
v. Stillman, 99 111. 197.
122 Spitler v. Spitler. [Nov.
Brief for the Appellee.
The conduct of the parties, including the degree of merit
on the one side and censure on the other, may be considered
independent of the pecuniary circumstances of the parties.
Stewartson v. Stewartson, 15 111. 145.
The subsequent marriage of a woman after divorce termi-
nates her right to alimony, or its continuance. (Stillman v.
Stillman, 99 111. 197.) And can it be said that a legitimate
marriage should be visited with a penalty from which illicit
concubinage is free ? A woman can not claim the advan-
tages of a contract that she utterly repudiates.
Formerly, one ground of alimony was the fact that the wife
had brought property to her husband. By our present law
the wife retains her separate property, but in this case there
is no proof that appellee ever had any property or estate of
her own.
If she was never the meritorious cause of the accumula-
tion of this property, but on the contrary has been the means
of wasting and diminishing it, and has, by her misconduct,
forfeited her claim upon appellant for support, she has no
equitable ground upon which to claim alimony as a right.
Shafer v. Shafer, 10 Neb. 468.
Mr. John C. Kean, for the appellee :
Under our statute, (Kev. Stat. 1874, p. 421, sec. 18,) as
construed by the courts, a divorced wife may have alimony
decreed her, although the divorce was for her misconduct.
Reavis v. lleavis, 1 Scam. 242; Deenis v. Deems, 79 111. 74;
Coon v. Coon, 26 Ind. 189.
The court below was vested with a sound judicial discre-
tion, to enable it to do what to it seemed just and equitable,
and the exercise of that discretion ought not to be interfered
with except for some cogent reason. Besides, the verdict of
the jury as to adultery was found entirely on circumstantial
"evidence. There is no proof of a single overt act of adul-
tery.
1883.] Spitler v. Spitler. 123
Opinion of the Court.
Taking into account the value of the property owned and
enjoyed by appellant, and the age of appellee, — forty-eight
years, — that she is now without any means of support except
her daily labor, and, also, that her labor and frugality have
largely contributed to the acquisition of the property now
owned by appellant, I think the order of the Appellate Court
should be affirmed.
Mr. Justice Mulkey delivered the opinion of the Court :
The appellee, Tamson E. Spitler, filed in the Stephenson
circuit court a bill for divorce against her husband, the
appellant, charging him with extreme and repeated cruelty.
The latter answered, denying the charge, and also filed a
cross-bill, charging her with adultery, and willful desertion
for the space of two years. The issues were made up on
the bill and cross-bill, and the cause was heard before the
court and a jury, resulting in a verdict in favor of the appel-
lant upon all the issues, and the court thereupon granted him
a divorce upon the ground of 'appellee's desertion and adul-
tery, as found by the verdict, — and the decree to this extent
is not questioned by either party on this appeal. Upon the
entry of the decree appellee filed a petition for permanent
alimony, the hearing of which was reserved to a subsequent
day. On the hearing of the petition the court entered an
order requiring the appellant to pay appellee, as alimony,
$100 per annum until the further order of the court. The
husband appealed from this order to the Appellate Court for
the Second District, where the same was affirmed, and he
brings the case here for review.
The appellee is now about forty-eight years of age, and the
appellant fifty-seven. They were married the 31st of Decem-
ber, 1850, and have had altogether seven children, four of
whom are dead, and the remaining three are grown and mar-
ried. Appellee had neither money nor property at the time
124 Spitler v. Spitler. [Nov.
Opinion of the Court.
of their marriage, and appellant's effects amounted to only
some $300 or $400, and he is now worth about $12,000 or
$13,000. The evidence shows he has always been an indus-
trious, hard-working man, a good and liberal provider in his
family, and, under the circumstances, reasonably kind and
indulgent to his wife and children. The weight of evidence
also shows that until the rupture between her and her hus-
band, occasioned by her indiscreet conduct and questionable
relations with other men, appellee was a good housekeeper,
and faithfully discharged her household duties. Some five
years ago, however, she left her home, without any sufficient
cause or justification, and established her residence in the
house of one Noah D. Peck, between whom and herself there
were good reasons to believe criminal relations had existed
for a long time. This opinion was not confined to her hus-
band, but seems to have been shared by their neighbors gen-
erally.
As the right to permanent alimony, so far as it depends on
general law, is founded upon the duty of the husband to sup-
port the wife, it therefore legally, as well as logically, follows,
that when this duty ceases the right also ceases. Hence it
is generally held, in the absence of statutory provisions con-
trolling the question, when the husband obtains a divorce on
account of the misconduct of the wife, the latter will not be
entitled to alimony. (2 Bishop on Marriage and Divorce, (4th
ed.) sees. 376, 377.) Looking at the question on principle,
the rule is certainly in harmony with other general rules gov-
erning the marital relation, as, for instance, the common law
duty of the husband to support the wife is not absolute. He
is bound to support her at their common home, and not under
another's roof, unless his own improper conduct has forced
her to seek shelter elsewhere. Hence if she abandons her
home without cause, the right to support from her husband
at once ceases. If, then, while the marital relation still
exists, the husband is under no obligations to support the
1883.] Spitler v. Spitler. 125
Opinion of the Court.
wife when she is without cause living apart from him, and
particularly when living in criminal relations with another,
a fortiori he will not be liable for her support after he has
obtained a divorce from her on account of her desertion and
adultery.
But a number of States of the Union, including our own,
have passed statutes somewhat modifying the common law
doctrine on the subject of alimony. Our statute relating to
this subject provides as follows : "When a divorce shall be
decreed, the court may make such order touching the alimony
and maintenance of the wife, the care, custody and support
of the children, or any of them, as from the circumstances of
the parties and the nature of the case shall be fit, reasonable
and just," etc. (Eev. Stat. 1874, page 421.) This provision
of the statute first came under consideration in Eeavis v.
Reavis, 1 Scam. 242, and the construction then given to it
was followed in Deems v. Deenis, 79 111. 75. These are the
only cases to which our attention has been called, or that now
recur to us, in which the construction of the statute has been
directly presented for consideration. These cases, in their
circumstances and legal aspects, are essentially alike. The
husband in each case filed the bill against the wife, charging
her with desertion, which was admitted by her answer, but
sought to be justified on the ground of the husband's mis-
conduct. The alleged justification was not, in the judgment
of the court, sustained by the proofs, and a decree granting
the husband a divorce, the care and custody of the children,
or a part of them, to the wife, and requiring him to pay her
a certain amount of alimony for the support of herself and
the children, was rendered in each case, and on appeal to
this court both of these decrees were affirmed. The con-
struction given to the statute in these cases establishes the
proposition that the fact of granting the husband a divorce
on account of the misconduct of the wife, will not of itself
necessarily deprive the wife of alimony in all cases, as it
126 Spitler v. Spitler. [Nov.
Opinion of the Court.
would but for the operation of the statute. On the other
hand, because alimony may, under special circumstances, be
decreed to the wife where the divorce has been granted to the
husband for her misconduct, it does not follow that such an
order would be warranted where the conduct of the wife, as
in the present case, has been grossly improper, and the allow-
ance of alimony is not required for the support of their com-
mon offspring, as it was in those cases.
It was manifestly not the object of the legislature in
adopting the provisions of the statute above cited, to abrogate
the general principles or policy of the law relating to the
subject of alimony, but rather to clothe the courts with power
to mitigate occasional hardships that would otherwise occur
on account of the inflexible rule that the wife is not entitled
to alimony where the divorce is granted to the husband on
acccymt of her own misconduct. This modification of the
general rule on the subject was intended to meet cases of
hardship, and afford relief to the erring wife when demanded
by mitigating circumstances, or the interest of such of the
children as might, for prudential reasons, be committed to
her custody for support or education. But we see nothing of
the kind in this case. Some four or five years before the
filing of the bill, without any cause, excuse or justification
whatever, appellee deliberately abandoned husband, home,
and all that home means, for the purpose — and sole purpose,
so far as we can see, — of improving her opportunities to carry
on criminal relations with her paramour.
To the suggestion appellee for many years faithfully dis-
charged her duties as a wife, and thereby materially aided
appellant in accumulating his present property, and should
therefore have a part allowed to her, it is a sufficient answer,
under the circumstances of this case, to say, that by the law
as it existed at the time of their marriage, and as it con-
tinued to be many years thereafter, her time, services and
1883.] Spitler v. Spitler. 127
Opinion of the Court.
accumulations after such marriage became absolutely his.
As a compensation for this, the same law compelled him to
furnish her with a home and provide for all her reasonable
wants, according to his means and station in life, and if he
neglected to do this, others were authorized to supply such
wants and compel him to pay the bills. However great may
have been his fortune, she was entitled to share it equally
with him, so far as her present personal needs were concerned.
If she survived him, she became entitled to her dower in his
lands and her award as widow in his personal estate, and it
was not in his power to deprive her of these rights without
her consent. So far as this record shows, the appellant faith-
fully discharged the obligations he assumed, and if she is not
now enjoying all the law secured to her, it is her own fault
and folly, — not her husband's, — and she must submit to the
consequences thus voluntarily brought upon herself, however
grievous they may be.
We are clearly of opinion that to award alimony to the
wife where the cause of divorce, shows such a degree of moral
turpitude and flagrant disregard of marital obligations on her
part as is disclosed by the evidence in this case, is an abuse
of the discretion with which the statute has clothed the courts
in awarding alimony, and for this reason the judgment of the
Appellate Court must be reversed, and the cause remanded to
that court with directions to reverse the order of the circuit
court awarding alimony, and dismiss the petition.
Judgment reversed.
128 Rosenthal v. Prussing. [Nov.
Kj-llabus. Opinion of the Court.
Julius Kosenthal, Public Administrator,
v.
Eugene E. Prussing, Admr.
Filed at Ottawa November 20, 1883.
Administration — of non-resident estates — creditor living in State pre-
ferred over public administrator. On the death of a non-resident intestate
leaving real or personal property in this State, a creditor of the estate living
in this State is entitled to preference over the public administrator in the
grant of letters of administration upon such estate.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Circuit Court of Cook
county; the Hon. Murray F. Tuley, Judge, presiding.
Mr. A. M. Pence, for the appellant.
Mr. Eugene E. Prussing, pro se.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
On June 5, 1883, Julius Kosenthal, public administrator
for Cook county, made application for letters of administra-
tion upon the estate of Dorothea Grumme, deceased. On
June 8, 1883, Prussing, as creditor, made application for
letters upon the same estate. Both petitions came on for
hearing at the same time, and both allege that Dorothea
Grumme died intestate in June, 1882 ; that she was a non-
resident at the time of her decease, and left personal estate in
Cook county of the value of $1000.82; that she left no hus-
band, and that all her heirs and next of kin reside in Hanover,
Germany, and that she left no heir or next of kin residing
in the State of Illinois. In their petitions Rosenthal alleges
that he was public administrator for Cook county, and Prus-
sing alleges that he was a creditor of the estate, and resided
18S3.] Eosenthal v. Prussing. 129
Opinion of the Court.
in Cook county, Illinois. The probate court, in its order,
found the facts to be as stated in both petitions, and dis-
missed Eosenthal's petition, and granted letters of adminis-
tration to Prussing. On appeals to the circuit court of Cook
county, and to the Appellate Court for the First District, the
order of the probate court was affirmed, and Eosenthal ap-
pealed to this court.
The point in controversy is, whether, by virtue of his office,
the public administrator is entitled to administer in all cases
where the deceased was a non-resident. Appellee claims that
if such non-resident leaves a resident creditor, then the public
administrator is not entitled to letters of administration.
Section 18 of the chapter on "Administration of Estates,"
(Eev. Stat. 1874, p. 107,) reads as follows: "Administra-
tion shall be granted to the husband upon the goods and
chattels of his wife, and to the widow or next of kin to the
intestate, or some of them, if they will accept the same and
are not disqualified, but in all cases the widow shall have
the preference ; and if no widow or other relative of the
intestate applies within sixty days from the death of the in-
testate, the county court may grant administration to any
creditor who shall apply for the same. If no creditor applies
within fifteen days next after the lapse of sixty days, as afore-
said, administration may be granted to any person whom the
county court may think will best manage the estate. In all
cases where the intestate is a non-resident, or without a
widow, next of kin, or creditors in this State, but leaves prop-
erty within the State, administration shall be granted to the
public administrators of the proper county, " etc. The literal
reading of the third sentence of this section is certainly with
the appellant, that "in all cases where the intestate is a non-
resident, " administration shall be granted to the public ad-
ministrator. Whether this be the true reading requires us to
look further. The preceding portion of the section provides
for a clear preference in administration : First, the husband
9—108 III.
130 EOSENTHAL V. PftUSSING. [Nov.
Opinion of the Court.
or widow ; second, the next of kin ; third, creditors, and then,
afterwards, such person as the county court thinks best.
The 48th section of the chapter provides : "Whenever
administration is granted to any public administrator, and
it shall afterwards appear that there is a widow or next of
kin, or creditor of the deceased entitled to the preference of
administration by this act, it shall be the duty of the county
court to revoke the letters granted to such public adminis-
trator, and to grant the same to such widow, next of kin, or
creditor, as is entitled thereto," etc. The idea of this section
would seem to be that the next of kin and creditors are enti-
tled to the preference of administration over the public ad-
ministrator, although appellant's counsel says it means only
the limited preference which exists in cases of a resident
intestate, and consists with there being no such preference
in case of non-resident intestates.
The 46th section provides that whenever any person dies
seized or possessed of any real estate within this State, and
has no relative or creditor within the State who will admin-
ister, the administration shall be committed to the public
administrator. Here, certainly, there is the preference of the
relative and creditor over the public administrator, without
any limitation whatever. To be sure it is in the case of real
estate, but we see no reason for any difference between the
two cases of real and personal estate,— why there should not
be the same general preference of next of kin and creditors
in the case of personal estate as well as in the case of real
estate, — and we think this section aids in support of the pre-
vailing idea of the statute, as a whole, of an entire preference
of the next of kin and creditors in the administration, without
restriction to resident intestates. Section 50 provides for the
public administrator taking steps to protect and secure the
effects of one dying intestate, from waste or embezzlement ;
but it is limited to the case of the intestate not leaving a
widow or next of kin, or a creditor, within the State.
18S3.] Kosenthal v. Prussing. 131
Opinion of the Court.
We may derive some aid in the interpretation by looking
at the statute as it stood at the time of the revision in 1874.
Parts of the chapter on "Wills," in the Kevised Statutes of
1845, were used in making up the chapter on "Administra-
tion of Estates" in the Ee vised Statutes of 1874, and section
18 of the latter, above quoted, was known as section 55 of
the former, and was a part of the original act of 1829, and
the two sections are the same. For the sake of comparison
at this place we reproduce the clause in question as it was in
said section 55 :
"In all cases where the intestate is a non-resident, or with-
out a widow, next of kin, or creditors in this State, but leaves
property within the State, administration shall be granted to
the public administrators of the proper county," etc.
Section 57 of that same chapter on "Wills" was as follows :
"Sec. 57. Whenever any person shall die intestate in any
county in this State, or when any non-resident shall die
intestate, leaving goods and chattels, rights and credits, or
either, in this State, and no widow or next of kin, or cred-
itor or creditors, shall be living within this State, adminis-
tration of the goods and chattels, rights and credits of such
intestate shall be granted to the public administrator," etc.
It will be seen that said sections 55 and 57 of the chapter
on "Wills" were in direct conflict with each other upon the
point in this case, because of the use of the word "or" in the
former, and the word "and" in the latter. The former says,
where the intestate is a non-resident, or without a widow,
next of kin, or creditors in this State, — that is, all non-resi-
dent intestates. The latter says, when any non-resident shall
die intestate, and no widow or next of kin, or creditor or
creditors, shall be living within this State, — that is, only such
non-resident intestates as shall be without widow or next of
kin, or creditors living within the State. Comparing these
sections 55 and 57 in the chapter of "Wills" together, it is
plain that statute did not, in all cases where the intestate
132 Eosenthal v. Peussing. [Nov.
Opinion of the Court.
was a non-resident, give the administration to the public ad-
ministrator, but in such cases only where the non-resident
intestate was without a widow or next of kin, or creditor or
creditors living in this State. It thence appears that the
word "or," above, in said section 55, in the chapter on
"Wills," was a mistake, and should have been "and." In
transcribing said section 55 into the Eevised Statutes of
1874, and making it section 18 in the chapter on the "Ad-
ministration of Estates," the word "or" was retained, when,
if the section had been copied, not in its literal reading, but
in its true meaning, the word "and" would have been used
in the place of the word "or, "and then this section 18 in
the Eevised Statutes would, in its literal reading; have pre-
ferred, in the administration, the next of kin or the creditor
in this State of a non-resident intestate over the public ad-
ministrator, as did section 55 of the former statute, accord-
ing to its true meaning. We see no reason for making any
change in the statutes in this particular respect, and can not
think that any was intended. If the principle is to obtain
at all of giving to the next of kin and creditors living in this
State a preference over the public administrator in adminis-
tering, we do not perceive why it should not be given to them
as well in the case of a non-resident as of a resident intes-
tate. Said section 57 of the old chapter of "Wills" is dropped
from the Eevised Statutes of 1874, perhaps from its being
considered but a repetition of what section 18 contains.
Sections 46 and 48, above referred to, of the present chap-
ter on "Administration of Estates," relating to real estate,
and providing for the revocation of the letters granted to
public administrators, are reenactments of sections 58 and
59 of the old chapter on "Wills," so that those sections were
present in the former statute to strengthen its idea of prefer-
ence of next of kin and creditors living in this State over the
public administrator, in the granting of letters of adminis-
tration.
18S3.]
Sivwright v. Pierce.
133
Syllabus. Brief for the Appellant.
We are of opinion that the probate court here, in granting
letters of administration on the estate of the non-resident
intestate, rightly gave the preference to the creditor living in
this State over the public administrator ; that it was the in-
tention of the statute to allow such preference, as derived
from taking the whole statute together, and from a compari-
son of its provisions with those of the former statute upon
the subject, and of which it is a revision.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed.
Walker and Scott, JJ. : We do not concur in this opinion.
Alexander C. Sivwright, Collector,
v.
Daniel Pierce.
Filed at Ottawa November 20, 1883.
Taxes — assessment of personal property — at what place. A perma-
nent resident of one town, in which he has been assessed on his personal
property, including his credits, can not be assessed on such credits in another
town in the same county; and where the board of review of the latter town
extends an assessment against him for credits, a court of equity will enjoin
the collection of the taxes extended thereon, as illegal.
Appeal from the Circuit Court of DeKalb county; the
Hon. Isaac G-. Wilson, Judge, presiding.
Mr. John L. Pratt, for the appellant :
A party asking equity must be willing to do equity in the
same matter. The proofs show that appellee, on May 1,
1880, had, and still has, in credits, $60,730 outstanding,
and that the loans were negotiated, papers made and money
134 Sivwright v. Pierce. [Nov.
Brief for the Appellant.
handed over in the town of Sycamore, and that the notes and
mortgages securing these loans were kept in Sycamore.
Boards of review have the power to make or order an
assessment which the assessor has failed to make, for any
cause. No informality not going to the substantial justice of
the tax shall, in any manner, vitiate the tax or assessment.
Eev. Stat. chap. 120, sec. 191 ; Lyle v. Jacques et al. 101 111.
650 ; Chicago, Burlington and Quincy R. R. Co. v. Fravy, 22
id. 34; Merritt et al. v. Farris et al. id. 310; McBrlde v.
Chicago, id. 576; Munson v. Miner, id. 601.
Equity will not restrain the collection of a tax on the sole
ground of illegality, irregularity or informality. There must
be special circumstances to give that court jurisdiction.
Youngblood v. Sexton, 32 Mich. 406 ; Douglas v. Harrisville,
9 W. Ya. 162; City of Delphi v. Bowen, 61 Ind. 29; Cook
County v. Chicago, Burlington and Quincy R. R. Co. 35 111.
467; Felsenthal et al. v. Johnson, 104 id. 23.
Mr. Hiram H. Cody, also, for the appellant :
It is a rule of universal application that when a party has
a complete remedy at law, and having the opportunity, slum-
bers upon his right and fails to insist upon it, a court of
equity will not afford relief. City of Peoria v. Kidder, 26 111.
357; Adsity. Lieb, 76 id. 19S; Coolbaugh v. Huck, 86 id.
604; The People v. Big Muddy Iron Co. 89 id. 116; Evans
v. Gage, 1 Bradw. 208 ; 90 111. 570.
The remedy at law in this case is "ample," "only," "ade-
quate and exclusive." English v. The People, 96 111. 568;
Felsenthal et al. v. Johnson, 104 id. 23 ; Preston v. Johnson,
id. 625.
The question of the situs of property is not jurisdictional,
and that it is taxed in the wrong town does not make the tax
illegal. Selzy. Cagwin, 104111. 647; The People v. Atkinson,
103 id. 45. ♦
1883.] Sivwright v. Pierce. 135
Brief for the Appellee. Opinion of the Court.
Messrs. J. P. & T. E. Wilson, for the appellee :
Appellee resided in Courtland during the entire year 1880,
and his personal property was therefore not subject to taxa-
tion in the town of Sycamore. Eev. Stat. sec. 7.
The town has no power to make an original assessment.
Kev. Stat. sec. 86.
A court of chancery has authority to enjoin the collection
of taxes levied upon an assessment made without authority
of law. Chicago, Burlington and Quincy R. R. Co. v. Frary,
22 111. 34 ; Kimball v. Merchants' Savings, Loan and Trust
Co. 89 id. 611 ; Town of Lebanon v. Ohio and Mississippi Ry.
Co. 77 id. 539 ; Drake v. Phillips, 40 id. 388 ; Irvin v. New
Orleans, St. Louis and Chicago Ry. Co. 94 id. 105 ; Lemont v.
Singer and Talcott Stone Co. 98 id. 94; Chicago, Burlington
and Quincy R. R. Co. v. Cole, 75 id. 591 ; Searing v. Heavy-
sides, 106 id. 85; Coolbaugh v. Buck, 86 id. 604.
The alleged fact that Pierce's credits were assessed too low
in Courtland, does not render valid the taxes levied upon such
credits in the town of Sycamore.
Mr. Justice Mulkey delivered the opinion of the Court :
The present bill was filed by the appellee, Daniel Pierce, in
the DeKalb circuit court, against the appellant Alexander C.
Sivwright, as the collector of the town of Sycamore, to enjoin
the collection of a personal tax. The bill alleges that com-
plainant is now, and during the entire year of 1880 was, a
resident of the town of Courtland, De Kalb county, Illinois ;
that his personal property, including his credits other than
as a banker, broker or stock jobber, were assessed by the as-
sessor of the town of Courtland for the year 1880, and taxes
extended on such assessment, and paid by the complainant
to the collector of Courtland ; that complainant was not on
the first day of May, A. D. 1880, or at any other time during
said year, engaged in business in the town of Sycamore, in
136 Sivwright v. Pierce. [Nov.
Opinion of the Court.
the said DeKalb county, as a banker, broker or stock jobber,
except as a member of the firm of Pierce & Dean, composed
of himself and another, which firm was assessed for 1880
upon its personal property, including its moneys and credits,
in Sycamore, and taxes extended and paid to the collector of
Sycamore ; that he was not assessed, as an individual, upon
personal property, by the assessor of Sycamore, for 1880;
that the board of review of Sycamore for 1880 made an orig-
inal assessment of $61,00.0, expressly on credits of complain-
ant other than as a bank, banker, broker or stock jobber,
and taxes were extended on such assessment, amounting to
$1960.78, and a warrant for the collection of said taxes
issued to the defendant, as collector of Sycamore, who threat-
ens to levy upon complainant's property by virtue of said
warrant to collect said taxes, and will do so unless restrained
by injunction. A temporary injunction was awarded upon
the filing of the bill, which was made perpetual upon the
hearing, and the collector brings the case here for review.
In the view we take of this case it will not be necessary
to consider the claim of appellee that the assessment in ques-
tion was not made by the assessor of Sycamore, but that it
was, on the contrary, an original assessment by the board of
review for that town ; nor will it be necessary to discuss other
objections urged against the regularity or validity of the tax.
The proofs fully show, and indeed it is not denied in the
answer, that during the year 1880, and for a number of years
prior thereto, appellee resided in Courtland, an adjoining
town, and that his personal effects, including his credits other
than as a banker, broker, etc., had been there assessed for the
year 1880, and that the taxes so assessed for that year had
already been paid. The proofs also fully sustain the charge
in the bill "that appellee had not, at any time during the
year 1880, been engaged in business in the town of Sycamore,
except as a member of the firm of Pierce & Dean, which firm
was assessed for 1880 upon its personal property, including
18S3.] . Gerdes v. Champion. 137
Syllabus.
its money and credits, in Sycamore, and the taxes extended
and paid to the collector of Sycamore." These facts being
clearly established, it follows the town of Sycamore had no
power or jurisdiction to levy, assess or extend upon the tax
books the tax in question, and hence the collector was prop-
erly enjoined from its collection.
The suggestion that appellee's assessment in the town of
Courtland covered but a small portion of his personal effects,
is a matter that concerns the town of Courtland, rather than
that of Sycamore. It certainly did not justify the latter in
imposing the tax in question.
The judgment will be affirmed.
Judgment affirmed.
Henry E. Gerdes
v.
Eoswell Champion.
Filed at Ottawa November 20, 1883.
1. Ceetioraei — at common law — when it lies. The common law writ
of certiorari may be awarded to all inferior tribunals and jurisdictions when
it appears that they have exceeded the limits of their jurisdiction, or in cases
where they have proceeded illegally, and no appeal is allowed, or no other
mode is provided for reviewing their proceedings.
2. Same — trial on record alone. The court awarding a writ of certiorari
where the record is sent up, tries the case on the record alone. The trial is
had by an inspection of the record, — not on any issue of fact, but of law,
rather, as on a writ of error.
3. Same — duty of inferior court on service of the writ. Where the writ
is issued and served, it becomes the duty of the inferior court or body to
whom it is directed to transmit a full and complete transcript of the record
of the proceedings of which complaint is made, properly certified, to the
court awarding the writ.
4. Same — to test legality of laying out a highway. The commissioners
of highways refused to grant the prayer of a petition for the laying out of a
highway, and their order was filed in the town clerk's office, whereupon a
138 Gerdes v. Champion. [Nov.
Brief for the Appellant.
party interested appealed from the decision of the commissioners, by riling,
as he claimed, the necessary papers before a justice of the peace. The latter
selected and summoned three supervisors to hear the appeal, who made a
preliminary order granting the prayer of the petition, and then filed with the
justice a certificate, under section 78 of the Road act of 1879, asking for a
jury to assess damages. The justice issued a venire for a jury, and fixed a
day for the trial, when a common law writ of certiorari was served upon
him: Held, that the writ could bring nothing before the court except the
petition for the appeal, the appeal bond, and the certificate asking for a jury,
these being the only papers required to be filed before the justice, and that
as no court could decide, from these alone, the legality of the proceedings,
the writ was properly dismissed. The writ should not have been sued out
until the proceedings were completed, and the papers filed with the town
clerk.
Appeal from the Appellate Court for the Second District ;
— heard in that court on appeal from the Circuit Court of
Whiteside county; the Hon. John V. Eustace, Judge, pre-
siding.
Messrs. J. & J. Dinsmoor, for the appellant :
The common law writ of certiorari may be issued to all
inferior tribunals, etc., where it is shown that they have
exceeded their jurisdiction, or have proceeded illegally, and
no appeal or other mode of reviewing their proceedings is
provided. Loomis v. Wilkinson, 13 111. 660.
The right to appeal in a road matter is a jurisdictional
fact, which must appear on the record. All matters and
proceedings relating to laying out roads are to be considered
stricti juris. Frizell v. Rogers, 82 111. 109 ; Warne v. Baker,
35 id. 382 ; Commissioners v. Harper, 38 id. 103.
By statute (section 98 of the Eoad law of 1879) the appeal
is not to the supervisors, but to the justice, and until the
supervisors close up their part of the business the record of
the proceedings remains with the justice, and must be treated
as a cause before him. Hence it follows that the writ of cer-
tiorari should be sent to the justice, while the appeal is pend-
ing before him.
1883.] Gerdes v. Champion. 139
Brief for the Appellee.
No one can appeal from the decision of the commissioners
except he is "one interested." Eoad law 1879, sec. 98, Eev.
Stat. chap. 121.
As to construction of statute finding who are interested,
see Taylor et al. v. Town of Normal, 88 111. 526 ; Whitmer
et al. v. Commissioners, 96 id. 289 ; Town of Oswego v. Kel-
logg, 99 id. 590.
The fact that proceedings in this case might be void for
want of jurisdiction, is no reason why they may not be re-
versed where the record is brought up by a common law
writ of certiorari. Loomis v. Wilkinson, 13 111. 660.
Messrs. Manahan & Ward, for the appellee :
It is not essential that the party appealing shall be an
owner of land over which the projected road passes, as it
was under the law of 1861. Whitmer v. Commissioners of
Highways, 96 111. 289 ; Town of Oswego v. Kellogg, 99 id. 590.
The status of the person appealing from the order of the
commissioners, under the old .law might rest in pais. Com-
missioners of Highways v. Supervisors, 53 111. 320 ; Town of
Winfield v. Moffatt, 42 id. 48.
The statute requires the original petitioners for the road to
be freeholders, yet the petition need not allege that they are
such. (Stager on Highways, 124; Brown v. McCord, 20
Ind. 270.) And where the question arises collaterally, proof
of the status of the petitioners may be made by parol. Austin
v. Allan, 6 Wis. 134; BushnickY. Meresole, 10 Wend. 122.
The record of this road is an entirety, although a part of
it is with the town clerk, part with the appellee, and the
residue, as yet uncompleted, with the supervisors before whom
the appeal is pending. The writ bringing up only the papers
before the justice, can not suffice to determine the jurisdic-
tion of the supervisors.
Appellant should wait until the record of this proceeding
shall be embodied in the final order of the supervisors and
140 Gerdes v. Champion. [Nov.
Opinion of the Court.
deposited with the town clerk. Then the writ of certiorari
will bring up the entire record, by which the jurisdiction of
the supervisors must stand or fall. The recitals of that final
order, if of jurisdictional facts, will be enough to confer juris-
diction. Commissioners of Highways v. Magill, 58 111. 422;
Frizell v. Rogers, 82 id. 109 ; Hawkins v. Galloway, 88 id. 155.
Mr. Justice Craig delivered the opinion of the Court :
This was a common law writ of certiorari, in the circuit
court of Whiteside county, issued on petition of Henry E.
Gerdes, against Eoswell Champion, a justice of the peace,
requiring him to send up a record of certain proceedings
before him in regard to laying out a certain highway.
It appears that the commissioners of highways of the town
of Hopkins, in Whiteside county, had received a petition
praying for the laying out of a highway in the town. The
commissioners, upon the hearing, refused the prayer of the
petition. The order was indorsed on the petition and duly
filed in the town clerk's office. One Tumbleson appealed
from the decision of the commissioners to three supervisors,
by filing, as he claims, the necessary papers before appellee,
a justice of the peace. The justice summoned three super-
visors to hear the appeal, who, upon the hearing, made a
preliminary order granting the prayer of the petition. The
supervisors then filed with appellee, a justice of the peace, a
certificate, under section 78 of the Eoad and Bridge act, ask-
ing for a jury to assess the damages. The justice issued a
venire for a jury, and fixed upon a day for trial, when this
writ of certiorari was issued commanding him to send up a
transcript of his record of the said proceedings had before
him as justice of the peace. The circuit court, on motion,
dismissed the writ, and this decision was affirmed in the
Appellate Court. The petitioner not being satisfied with the
decision of the Appellate Court, has prosecuted this appeal.
1883.] Gerdes v. Champion. 141
Opinion of the Court.
The common law writ of certiorari may be awarded to
all inferior tribunals and jurisdictions where it appears that
they have exceeded the limits of their jurisdiction, or in cases
where they have proceeded illegally, and no appeal is allowed,
and no other mode is provided for reviewing their proceed-
ings. {People ex rel. Loomis v. Wilkinson, 13 111. 060.) In
speaking of this writ, in Commissioners v. Harper, 38 111. 107,
it was said : "The common law writ of certiorari is the only
mode by which the entire record of the proceedings of an
inferior tribunal can be brought into the circuit court. That
writ brings up a full and complete transcript of the record
of the proceedings of which complaint is made, and when
brought up the superior court tries the case on the record
alone. * * * The trial is had by an inspection of the
record, — not on any issue of fact, but of law, rather, as on a
writ of error." In Commissioners v. Supervisors, 27 111. 143,
it is said: "When issued and served, it becomes the duty
of the inferior court, or body to whom it is directed, to trans-
mit a fall and complete transcript of the record of the pro-
ceedings of which complaint is made, properly certified, to
the court awarding the writ."
It is contended here that the petition for an appeal filed
before the justice of the peace by Tumbleson was not suf-
ficient to authorize the justice to entertain it. It will be
observed that the petition to establish the highway, and all
the proceedings upon it by the commissioners of highways,
are on file in the office of the town clerk. The justice of the
peace to whom this writ was directed was not the custodian
of any part of the proceedings relating to the laying out of
this road, except the petition for an appeal required by sec-
tion 99, chapter 121, of the Kevised Statutes of 1874, and
the bond required by section 102, and the certificate required
by section 7S, calling for a jury to assess damages. All
other papers and proceedings relating to this highway were
either in the office of the town clerk or in the hands of the
142 Gerdes v. Champion. [Nov.
Opinion of the Court.
three supervisors to whom the appeal was taken. This writ
of certiorari could properly bring nothing before the court
except the petition filed with the justice for an appeal, the
appeal bond, and the certificate calling for a jury to assess
damages. Could the circuit court, or any other court, in
an intelligent manner pass upon and determine whether the
supervisors had jurisdiction to lay out this road on this small
fraction of a record of the proceedings brought up on this
writ ? The answer is obvious. The only intelligent manner
in which the action of the supervisors could be passed upon
and determined would be to bring up the entire record of the
proceedings had in regard to the road, from the commence-
ment down to and including the last and final order. Under
section 101 the supervisors are required to "make a report
of their proceedings and decision in the case, and in like
manner that is by this act required by the highway commis-
sioners, "*■*"* and their decision shall be final. " Section
89 is the section of the statute fixing the duties of the com-
missioners after they have made and signed an order laying
out the road. It is there declared: "The commissioners
shall, within ten days from the date of such order, cause the
same, together with the report of the surveyor, the petition
and releases, or agreements in respect to damages, to be
deposited and filed in the office of the town clerk, who shall
note upon such order the date of such filing." After the
three supervisors shall have completed the proceedings and
made return to the town clerk, if they acted without juris-
diction it will then be time enough to raise that question,
when all the proceedings relating to the road can be brought
before the court for examination. As that time has not
arrived, and as there was nothing but a small part of the
record before the circuit court, the court decided right in
quashing the writ.
The decision of the Appellate Court will be affirmed.
Judgment affirmed.
18S3.] International Bank et al. v. IVilshtre. 143
Syllabus.
The International Bank of Chicago et al.
v.
• George Wilshire.
Filed at Ottawa November 20, 1883.
1. Moetgage — assignment — conveyance in fee by mortgagor to mort-
gagee— effect as to prior assignee of the debt secured — whether there is a
merger. A conveyance of real estate by a mortgagor to the mortgagee after
the assignment of the notes secured and the mortgage to another, taking the
same in good faith and for value, without the knowledge or assent of such
assignee, will not, as to him, operate as a merger of the mortgage, or affect
his rights; and after the recording of the assignment of the mortgage, a pur-
chaser from the mortgagee after the mortgagor's release of his equity of
redemption will take subject to the equitable rights of the assignee.
2. A mortgagee, after the release to him of the mortgagor's equity of
redemption, may keep the mortgage alive in favor of one to whom he had
pledged the mortgage debt before the release of the equity of redemption,
and he may also obtain future advances on such assignment, which will be
evidence of an intention to keep the mortgage alive for the protection of his
assignee; and in such case no merger will take place.
3. A conveyance of a mortgagor's equity of redemption to the mortgagee,
after the latter has parted with the mortgage and notes thereby secured, by
assignment to a bona fide purchaser or creditor as a security, can not, in
equity, be treated as a merger of the mortgage estate in the fee, for the rea-
son that the original mortgagee, in equity, at the time of such conveyance
had ceased to be such mortgagee, so that the two titles could not unite in
the same person. If such conveyance should be made to the assignee of the
mortgage, there would be greater plausibility in claiming a merger; but even
then, if equity had required it, to promote justice, it would not have been
treated as a merger.
4. Chanceey — affirmative relief on answer — what so regarded. On bill
to enjoin the sale of real estate on execution issued on a judgment in a pro-
ceeding by scire facias to foreclose a mortgage, the court, on hearing on bill,
answer and replication, entered a decree, allowing the defendant to proceed
and sell under his execution, and directing the sale to be made in the same
way the law required, independent of the decree: Held, that the decree was
not subject to the objection of giving affirmative relief without a cross-bill.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Circuit Court of Cook
county ; the Hon. T. A. Moran, Judge, presiding.
144 International Bank et al. v. Wilshire. [Nov.
Brief for the Appellants.
Messrs. Eosenthal & Pence, for the appellants the Inter-
national Bank, Greenebaum & Foreman, and Levi Eosenfeld :
A merger of a mortgage into a greater estate is always a
matter of intention, and where the intention to merge a mort-
gage in the fee is established, nothing can be shown against
it. Campbell v. Carter, 14 111. 286 ; Jarvis v. Frink, id. 396 ;
Edgerton v. Young, 43 id. 464; Fowler v. Fay, 62 id. 365;
Mtna Life Ins. Co. v. Com, 89 id. 173.
The Honore mortgage standing of record in Walker at
the time of the conveyance by Honore to him, there was a
presumption of a merger, and deeds made by Walker, and
put of record before the filing for record of the assignment of
the Honore mortgage to Wilshire & Co., would be protected
against the Honore mortgage. Ogle v. Turpin, 102 111. 148.
Where a mortgage is paid and satisfied, or is merged in
the larger estate, it ceases to exist as a security in the hands
of the mortgagee, and the legal title is reinvested in the
mortgagor by operation of law. Ryan v. Dunlap, 17 111. 43;
Wiltham v. Brooner, 63 id. 344 ; Andrews v. Thayer, 30 Wis.
228 ; Ladue v. Railroad Co. 13 Mich. 395 ; Richardson v. City
of Cambridge, 2 Allen, 118; Merrill v. Chase, 3 id. 339.
Further advances subsequent to the record of an interven-
ing deed or incumbrance can not be enforced as against the
intervening purchaser or incumbrancer. Terhoven v. Kerns,
2 Barr, 99 ; Brinkerhoff v. Marvin, 5 Johns. Ch. 326 ', Mont-
gomery County's Appeal, 36 Pa. St. 132 ; Griffin v. New Jersey
Oil Co. 3 Stockt. 52; Spader v. Lawler, 17 Ohio, 371.
The only cases in this State on the question, are Fry v.
Bank, 11 111. 155, Collins v. Carlyle, 13 id. 254, Speer v.
Skinner, 35 id. 282, and Schidtze v. Houfes, 96 id. 335.
The Honore mortgage having ceased to exist, can have no
operation, or be revived, so as to charge the estate of Walker
in his own hands, without some instrument in writing made
and signed by him. Peckham v. Haddock, 36 111. 39 ; Rich-
1883.] International Bank et at. v. Wilshire. 145
Brief for the Appellee.
ardson v. City of Cambridge, 2 Allen, 118 ; Merrill v. Chase,
3 id. 338.
The assignment of Walker to Wilshire & Co. had ceased to
be operative on account of the merger, and before the indebt-
edness to them now existing was created. Being a nullity
it was not entitled to be recorded, and after record was no
notice. Moore v. Hunter, 1 Gilm. 317; St. John v. Conger,
40 111. 536; James v. Morey, 2 Cow. 310; Mesick v. Sunder-
land, 6 Cal. 315; Kerns v. Savage, 2 Watts, 77; Tillman v.
Cowand, 12 S. & M. 265.
After the extinguishment of the Honore mortgage by mer-
ger, and such merger appearing of record, a judgment of
foreclosure by scire facias would also be a nullity, for a pro-
ceeding by scire facias is a proceeding upon a record, and a
judgment in scire facias creates no lien upon the mortgaged
premises, but is merely the means of making available the
lien already existing. State Bank v. Wilson, 4 Gilm. 61 ;
Checkering v. Failes, 26 111. 517; Chestnut v. Chestnut, 77 id.
346 ; Woodbury v. Manlove, 14 id. 23.
Mr. W. T. Burgess, for the appellant A. G. Hunt :
Hunt assigns an error peculiar to himself, — that affirma-
tive relief was granted to his co-defendant in the original bill
(Wilshire) without any cross-bill whereby the issues between
him and Wilshire could be raised and tried. Such relief can
not be granted without a cross-bill. Ballance v. Underhill,
3 Scam. 453 ; Edwards v. Helm, 4 id. 142 ; McCagg v. Hea-
cock, 42 111. 153; Hanna v. Ratikin, 43 id. 462; Titsworth v.
Stout, 49 id. 78; Norman v. Huddleston, 64 id. 11; Price v.
Blackmore, 65 id. 386.
Messrs. J. P. & J. E. Wilson, for the appellee :
The burden of proof on the question of merger is upon the
appellants, and Wilshire & Co. were not chargeable with con-
structive notice of the deed from Honore to Walker. Heaton
10—108 III.
146 International Bank et al. v. Wilshire. [Nov.
Brief for the Appellee.
v. Prather et al. 84 111. 330; Hosmcr v. Campbell, 9S id. 572;
Stuyvesant v. Home, 1 Sanclf. Cb. 426 ; King v. McVickar, 13
id. 192; Blair v. Ward, 1 Stockt. 119; Iglehart v. CWe c£
Wesson, 42 111. 261 ; Meacham v. Steele, 93 id. 141 ; Buchanan
v. International Bank, 78 id. 500.
Where the mortgagor conveys the equity of redemption to
the mortgagee, there arises no such presumption of a merger
as will protect a third party .subsequently buying from the
mortgagee, as against the purchaser of the note secured by
the mortgage who has bought such note prior to the deed
from the mortgagor to the mortgagee, {Edgerton v. Young, 43
111. 464,) unless the mortgagee has entered satisfaction on
the record. Ogle v. Turpin, 102 111. 148. See, also, Jones
on Mortgages, sec. 872 ; Purdy v. Huntington, 42 N.Y. 304.
Merger should not be allowed where the two estates may
well stand together, and there must be no right outstanding
to intervene between the right held and the right acquired.
Hunt v. Hunt, 14 Pick. 324. See, also, 2 Washburn on Keal
Prop. 193; Jones on Mortgages, sees. 853, 872.
A merger is never allowed to take place where it will do
injustice. Starr v. Ellis, 6 Johns. 394; Edgerton v. Young,
43 111. 464; Huebsch v. Scheel, 81 id. 281 ; 1 Hilliard on Eeal
Prop. 444; Richardson v. Hockenhull, 85 id. 124; Stanton v.
Thompson, 49 N. H. 272 ; Kellogg v. Ames, 41 N. Y. 259. " "
Walker, by treating the mortgage as still subsisting, is
estopped from insisting on its merger. Powell v. Smith, 30
Mich. 451 ; Kellogg v. Ames, 41 N. Y. 259.
Purchasers from Walker, after the recording of the assign-
ment of the Honore mortgage, have no greater rights than
Walker would have as against the Honore mortgage.
The judgment in the scire facias proceeding is a bar to all
defences to the Honore mortgage that could have been set
up as /defences to such suit. Hobson v. Evan, 62 111., 146 ;
White v. Watkins, 23 id. 480 ; Carpenter v. Mooers, 26 id. 162.
The decree does not grant affirmative relief to Wilshire.
1883'.] International Bank et al. v. Wilshire. • 147
Opinion of the Court.
Mr. Justice Walker delivered the opinion of the Court :
In the month of October, 1865, Samuel J. Walker, being
the owner of certain real estate in the city of Chicago, con-
veyed it to Henry H. Honore, who, on the same day, executed
a mortgage on the premises to Walker, to secure the payment
of two promissory notes of the same date, executed by Honore
to(Walker, for $18,000 each, due in one and two years after
date. They bore eight per cent interest. The mortgage
recited that the notes were given for part of the purchase
money. The deed and mortgage were recorded on the 30th
day of December, 1865. Soon after, Walker sold one of the
notes to Wilshire & Co., of Cincinnati, and left the other with
them as collateral security for any sum he might afterwards
owe them. The notes and mortgage have ever since remained
in their possession or control. When the note clue in twelve
months matured, Walker paid an amount equal to the amount
due, which, with the other note not then due, he pledged as
collateral security for any sum they might afterwards advance
to him. Wilshire & Co. still held the note and mortgage, and
they also purchased other commercial paper, from time to
time, from Walker, indorsed and guarantied by him, until the
fall of 1872. In November of that year Wilshire & Co. placed
the mortgage, and the indorsement thereon, dated in 1866, on
record in the proper office. In 1871 Walker procured from
Honore a quitclaim deed of the premises embraced in the
mortgage, which he had recorded, but of this Wilshire & Co.
had no other notice than the record. Walker, at all times,
after he assigned the mortgage to Wilshire & Co., was indebted
to them, and to secure which they held the Honore notes and
mortgage. In 1877 George Wilshire, as surviving partner of
the firm, commenced proceedings by scire facias in the Supe-
rior Court to foreclose the mortgage, against Honore, which
resulted, at the September term of that year, in a judgment.
In 1878 appellants sued out a writ of error from this court
148 International Bank et al. v. Wilshire. [Nov.
Opinion of the Court.
to reverse that judgment, but on a hearing it was affirmed,
and appellants then filed the original and cross-bills to enjoin
the sale of the mortgaged premises under the judgment in
scire facias. On a hearing, the court below found that the
notes and mortgage were pledged to secure indebtedness from
Walker to the Wilshires, and the amount of such indebted-
ness was $65,000, and directed the sale of so much only of
the property covered by the Honore mortgage as remained
unsold and in the hands of Walker at the date of the record-
ing of the assignment of the mortgage to the WTilshires,
under the scire facias judgment, and that the property be
sold in the inverse order of its alienation.
The question presented, and upon which this controversy
must turn, is, whether the conveyance by Honore, the mort-
gagor, to Walker, the mortgagee, operated for all purposes as
a merger and extinction of the mortgage previously assigned
to and held by the Wilshires. Whether it operated as a
merger as between Honore and Walker is unimportant, and
we will not stop to inquire. The question is, what effect did
it have on the rights of the Wilshires, and purchasers of a
portion of the lots embraced in the mortgage, after the assign-
ment was spread on the record. That Walker was indebted
to the Wilshires, and they held the Honore notes and mort-
gage, assigned to them as security for indebtedness Walker
owed them when he procured the quitclaim deed from Honore,
there seems to be no question, and it would seem to be an
incontrovertible proposition that the conveyance, without the
consent of the Wilshires, did not, nor could it, have the
slightest effect on their rights. The lien they then held was
in every particular legal and equitable, valid and binding.
This being true, there is no known means by which Walker
or Honore, or both combined, could, without the consent of
the Wilshires, or at least by some omission of duty on their
part, in the slightest degree affect or impair their rights.
18S3.] International Bank et ah v. Wilshire. 149
Opinion of the Court.
As between Walker and the Wilshires, there can not be the
shadow of a doubt that after Honore quitclaimed the prop-
erty to Walker it was competent for Walker and the Wil-
shires to keep the mortgage alive to secure money the former
owed then, or might subsequently owe the latter. There is
not the slightest evidence that Walker intended to merge the
mortgage with the fee, so as to extinguish it, so far as the
pledge to the Wilshires was concerned. On the contrary,
the inference is that it was intended to be kept in full force as
a security for the money Walker owed the Wilshires. Walker
so treated it when he subsequently obtained advances on the
mortgage and notes as security. Nothing was said or done
which negatives the conclusion that for that purpose all par-
ties to the transaction regarded it as a subsisting security.
Had Walker, after acquiring the equity of redemption, mort-
gaged the property to the Wilshires to secure existing indebt-
edness as well as future advances, and the mortgage been
recorded, no one would have questioned that it would have
become a lien that would have .held the property against all
subsequent purchasers. Then why could not Walker pledge
that mortgage as security for such loans ? As between the
parties there can be no question that he might do so, and the
act would be valid.
Here was a mortgage given to secure two notes, that was
legal and valid. These notes and mortgage were legally as-
signed to secure a bona fide debt. The assignment of the
mortgage was recorded in the proper office, and became notice
of the lien to the whole world. There is no pretense that
these notes were ever paid or the mortgage ever in fact sat-
isfied, and we have seen the mortgage was not merged with
the fee, because the parties did not intend a merger, and it
would be inequitable and unjust to hold that the conveyance
to Walker operated to extinguish the mortgage. Walker, in
equity, was not the mortgagee when Honore conveyed to him.
The Wilshires were, in equity, the mortgagees, and the two
150 International Bank et at. v. Wilshire. [Nov.
Opinion of the Court.
titles did not unite in the same person, and never have. Had
Honore conveyed to the. Wilshires, there would have been
more plausibility in claiming there was a merger, — and even
then, if equity had required it to promote justice, it would
not have been treated as a merger. Whether the union of
two such titles in one person shall operate as a merger,
depends on the intention of the parties and the equities of
the case.
The Wilshires then holding a valid lien on the lots in
controversy, and the mortgage and its assignment being on
record and notice to all persons, those purchasing after the
assignment was recorded did so subject to the lien of the
mortgagee, and at their peril. The record was full notice
of appellee's claim, and having so purchased they must be
held to have done so in view of all of appellee's rights, and
the property purchased of Walker after the assignment must
be held subject to sale under the scire facias judgment.
The fact has been alluded to that in the absence of Wil-
liam Wilshire in California, his brother George made a con-
ditional arrangement to surrender the notes and mortgage
and to take another mortgage on other property, and the
notes and mortgage were left with Kerfoot. The evidence
clearly establishes the fact that this arrangement was not
consummated, and was not to be unless it was approved by
William Wilshire on his return from California, and on his
return he refused to sanction the arrangement. All must
know that such an incomplete arrangement could have no
effect on the rights of appellee.
It is also urged that the court below erred in granting
affirmative relief to appellee without a cross-bill. We do not
see that any relief of any kind was granted, unless it was
the dismissal of the bill and permitting the property to be
sold to satisfy the judgment. Appellee, in the absence of any
decree, was required to sell in the inverse order of alienation,
and only to sell such portion of the property as was pur-
IS S3.] County of Cook v. Harms. 151
Syllabus.
chased after the assignment of the mortgage was recorded.
This was the right of appellee, independent of the decree.
It conferred on him no right he did not possess before. Nor
did it deprive appellants of any rights. It simply permitted
appellee to proceed to obtain satisfaction under an execution
on his judgment at law.
Having discussed the questions deemed important to the
decision of the case, we dismiss the others without further
consideration.
Failing to perceive any error in the record, the decree of
the court below is affirmed.
Decree affirmed.
The County of Cook
v.
Henry Harms.
Filed at Ottawa November 20, 1883.
1. Building contract — when it ceases to govern, by material depart-
ures in its execution. A contract for furnishing all materials, and con-
structing a foundation for a court house according to certain plans and
specifications, upon which bids were based, provided that any work, changes,
additions or alterations ordered should not invalidate the contract, but that
they should be paid for as extra work, or deducted from the original amount,
as the case might be, such extras or deductions to be subject to the valuation
of the architect, whose decision was to be final: Held, that if the work, etc.,
ordered, was materially variant from the plans and specifications, it would
be a different work not within the contemplation of the parties when the
contract was made, and that where more than mere changes, additions and
alterations were required, the contractor was not bound to accept such com-
pensation for his labor, etc., as the architect might fix.
2. Same — provision for changes, etc., in work, construed. Where a
contract for the construction of a building provides that "changes, additions
and alterations" in the work may be ordered and paid for as extra work, or
deducted, as the case may be, on the architect's estimate, it will be held to
mean only such "changes, additions and alterations" as may be incidental
to the complete execution of the work as described in the plans and specifi-
152 County of Cook v. Harms. [Nov.
Syllabus.
i
cations, and therefore of only minor and trifling importance. Any material
departure from such plans and specifications, resulting in a new and sub-
stantially different undertaking, can not be regarded as within the meaning
of such a provision, and the contractor, in case of such material and sub-
stantial change, is not limited or governed by the original contract as to his
compensation for the work.
3. Same — estoppel of party, by his conduct, from availing of an aban-
donment of a special contract. In case of the abandonment of a special
contract for labor, work and material by one party thereto, there is no pre-
sumption of estoppel against the right of the other party to avail of it, and
hence the law of estoppel is not an indispensable element in the doctrine of
abandonment. It may, or it may not, apply in such cases, and if relied on
it is matter of special defence.
4. Same — when architect's decision is not final, though so expressed
in contract. Where a building contract provides that in case changes, addi-
tions or alterations are required in the work, and made, the price to be paid
extra or deducted therefore shall be "subject to the valuation of the archi-
tect," whose decision shall be final, it is the architect's judgment, and not his
arbitrary will, that is made conclusive, and if he acts fraudulently his deci-
sion will not conclude the party whom he attempts to wrong.
5. Under such a provision in a contract, if it be> shown that the architect,
in making his decision, has disregarded important, clearly established or
obvious facts, of which there is some evidence in the record, the prima facie
presumption will be that he did so willfully.
6. Where a building contract makes the estimate and valuation of an
architect final on the parties as to extra work, caused by changes, additions
or alterations ordered, the architect can only exercise the right of determin-
ing the value of such extra work and material in the manner provided in the
contract.
7. Instruction — whether submitting a question of law. Where, after
a contract for making the foundation of a court house, etc., had been entered
into, based upon certain plans and specifications, new plans were adopted to
which the contractor was required to conform, and in a suit by him against
the county the court instructed the jury that if they believed, from the evi-
dence, that the new plans "were so different from the old plans as to provide
for a new and materially different job or piece of work and foundation, and
not a mere change, addition or alteration of the foundation provided for by
the old plan," (which were authorized to be, made by the contract,) and that
such adoption of the new plans was without the consent of the plaintiff, then
the original contract was not binding on him, etc.: Held, that the instruc-
tion was not subject to the objection that it submitted a question of law to
the jury. The jury by it are told what does not mean changes, etc.
8. Same — when should be qualified in itself. A proposition in an in-
struction which, in and of itself, is not accurate without modification or
1883.] County of Cook v. Harms. 153
Brief for the Appellant.
qualification, should be accompanied with the requisite modification or quali-
fication.
9. Same— weed not anticipate hypotheses of the opposite party. It is
not required that an instruction shall anticipate the existence of hypotheses
contrary to that upon the theory of which it is framed. It is sufficient if it
rests upon a hypothesis sustained by evidence, and states accurately and fully
the law upon that hypothesis. If the evidence also fairly presents hypoth-
eses sustaining modifying or repugnant legal propositions, those desiring to
avail of such propositions may have them presented in separate instructions.
10. So where an instruction presents a prima facie case entitling the
plaintiff to recover for the value of materials furnished and labor performed
by him, upon the ground that the original contract had been abandoned by
the defendant, if the defendant relies upon the fact that the plaintiff is by his
conduct estopped to say that the contract has been abandoned, he should
ask an instruction in his own behalf presenting the law upon that phase of
the case.
11. Same — must be based on evidence — need not be supported by the
weight of. An instruction may properly be given based upon a hypothesis
of which there is some evidence tending to prove, without regard to the
weight or preponderance of the same.
12. Same — as assuming facts. It is not objectionable in an instruction
to assume as true a pertinent matter about which there is no dispute. Nor
does an instruction submit a legal proposition which tells the jury that al-
though they may believe, etc., then the. law is so and so.
13. Estoppel— of county, by acts of its agents. A county may be
estopped and concluded by the acts and declarations of its agents appointed
to superintend and supervise work being done for it under a contract, made
in relation to the matter of their agency.
Appeal from the Appellate Court for the Second District ;
— heard in that court on appeal from the Circuit Court of
DuPage county; the Hon. John H. Williams, Judge, pre-
siding.
Mr. E. K. Bliss, and Messrs. Stiles & Lewis, for the
appellant :
A contract once made is presumed to exist until it is shown
to have been reformed or rescinded. Love v. Edmonston, 3
Ired. L. 354.
The language, "any changes," etc., shall not invalidate or
impair the contract, is very broad and comprehensive, and
154: County of Cook v. Harms. [Nov.
Brief for the Appellant.
will permit any 'changes whatever in the plans, provided the
work to be done is still the foundation for a new court house.
The words, "any additions, changes or alterations," are not
technical words to be construed by the jury. It is the duty
of the court to construe and give their meaning. 2 Parsons
on Contracts, 492.
What the contract required to be done, was a question of
law for the court ; whether it had been done, a question of
fact for the jury. Worcester Medical Institute v. Harding, 11
Cush. 285; Streeter v. Streeter, 43 111. 155; Glacius v. Black,
67 N. Y. 563; Robsobacher v. Ware, 3 Iowa, 85; Andrews v.
Tedford, 37 id. 314; Monadnock R. R. Co. v. Felt, 52 N. H.
379.
Mere deviations and changes of the plan will not imply
abrogation or abandonment, where the contract expressly
provides that such deviations and changes may be made.
Bozarth v. Dudley, 14 N. J. L. 304.
If the adoption of the new plans amounted to a breach or
abandonment of the contract by the county, Harms was enti-
tled to abandon it, too, and sue for what he had clone, and
damages. But in such case he was required to take his posi-
tion distinctly and unequivocally. Weeks v. Robis, 42 N. H.
316; Sumner v. Parker, 36 id. 449; Evans v. Montgomery,
50 Iowa, 325; Carney v. Newberry, 24 111. 203.
An architect has no authority, as such, to order deviations
from the plan, or to waive or make a new contract. Cooper
v. Lang don, 9 M. & W. 60 ; Stuart v. City of Cambridge, 125
Mass. 102 ; Benton Co. v. Patrick, 54 Miss. 240 ; Starkweather
v. Goodman, 48 Conn. 101.
The supervisors have no power to act individually. It is
only when convened and acting together as a board of super-
visors that they represent and bind the county by their acts.
Where the officers or agents of a public corporation have no
powers with respect to original matter, we regard the rale to
be that neither their acts nor their individual knowledge in
18S3.] County of Cook v. Harms. 155
Brief for the Appellee. Opinion of the Court.
respect to the matter can in any way bind or affect such cor-
poration. Benton v. McDonough County, 84 111. 384; Bice v.
Plymouth County, 43 Iowa, 13G.
The parties' construction of a contract, as shown by their
acts in respect to it, when reasonable, will govern. Vermont
Street M. E. Church v. Brose, 104 111. 206; Patterson v. Cam-
den, 25 Mo. 13; Whitehead v. Bank of Pittsburg, 2 W. & S.
172; Chapman v. Black, 5 Scott, C. P. 515; St. Louis Gas
Bight Co. v. City of St. Louis, 46 Mo. 121 ; Chicago v. Shel-
don, 7 Wall 50; Garrison v. Nike, 87 111. 215.
The parties were bound by the valuations of the architect,
unless impeached for fraud or mistake. Snell v. Brown, 71
111. 133; Korf v. Lull, 70 id. 420; Coey v. Lehman, 79 id.
173; Downey v. O'Donnell, 86 id. 49; Finney v. Conden, id.
78 ; Dinghy v. Green, 54 Cal. 333.
Mr. J. V. Le Moyne, and Mr. E. H. Gray, for the appellee :
If fraud is wanting there can be no equitable estoppel.
There must be deception, and change of conduct in conse-
quence, in order to estop a party from showing the truth.
DorlarqueY. Cress, 71 111. 3S0 ; Chandler v. White, 84 id. 435.
Estoppels in pais may be applied to municipal corpora-
tions. Chicago, Bock Island and Pacific B. B. Co. v. City
of Joliet, 79 111. 25; Logan County v. City of Lincoln, 81 id.
156 ; Northwestern By. Co. v. People, 91 id. 251 ; Martel v.
City of East St. Louis, 94 id. 67.
Counsel also contended, at considerable length, that the
plaintiff's instructions were proper, and based upon evidence,
and also reviewed the evidence and considered its bearing and
weight.
Mr. Justice Scholfield delivered the opinion of the Court :
On the 6th of October, 1875, a contract was made, and its
terms reduced to writing, and signed by the parties thereto,
whereby Henry Harms, in consideration of certain specified
156 County op Cook v. Harms. , [Nov.
Opinion of the Court.
payments agreed to be made to* him by the county of Cook,
agreed "to furnish the materials and labor, and perform all
the excavating, make the roadway, perform the piling and
concrete work, together with the stone and mason work,
including the brick work and sewerage," that might "be
required in and about the construction and erection of the
foundation of the new court house" then "about to be erected
by the county of Cook" in the city of Chicago, "according
to the plans and specifications of J. J. Egan, architect."
Work was commenced under this contract, and prosecuted
until the 17th of January next following, when the county
board rescinded its action, taken before the making of the
contract with Harms, whereby it had approved and adopted
the plans for the court house, in view of which that contract
was made, and approved and adopted new plans, prepared
by the same architect, in their stead. Thereafter, Harms
furnished the materials and did the work to fully construct
and complete the foundation of the court house, under the
direction of the architect and superintendent of the county,
in conformity with the plans last approved and adopted by
the county. This suit was brought in the circuit court, for
the value of the materials and work and labor thus furnished
and performed by Harms. This appeal from the affirmance
of the judgment of the circuit court by that of the Appellate
Court, brings before us only the correctness of the ruling of
the Appellate Court in respect to the propositions of law
involved in the giving and refusing of instructions, and in
respect to the admission of certain evidence on behalf of
appellee against appellant's objection, for no other questions
of law were raised and passed upon during the progress of
the trial.
The following instruction, given at the instance of the
plaintiff, is objected to :
"If the jury believe, from the evidence, that the new plans
for a foundation, adopted by the commissioners January 17,
18S3.] County of Cook v. Harms. 157
Opinion of the Court.
IS 76, were so different from the old plans as to provide for
a new and materially different job, piece of work and foun-
dation, and not a mere change, addition or alteration of the
foundation provided for by the old plan, and that such adop-
tion of the plans was without the consent of plaintiff, then
the original contract was no longer binding upon the plain-
tiff, and he would be entitled to be paid according to meas-
urement and value for such work and materials, if any, as
the evidence shows was furnished to defendant and accepted
by said board of commissioners, with full knowledge on their
part, — if the jury so find, from the evidence, that the same
was furnished upon an implied contract to pay for the same,
not under the contract read in evidence. "
The grounds of objection insisted upon in argument are,
first, it submits a question of law to the jury ; and second,
it ignores the effect of the conduct of the parties in regard
to the continuance of the contract, and its meaning as to
the extra work. We can not coincide with counsel on either
proposition.
First — One of the "general conditions" in the specifications
annexed to the contract is as follows : "If the contractor
shall be ordered to execute any work, or make any additions,
changes or alterations in the work, as hereinafter set forth,
and as indicated on the plans, drawings and sections here-
with submitted, then it shall be understood and agreed upon
that such changes, additions or alterations, if so ordered,
shall not invalidate or impair the contract, but they shall be
paid for as extra work, or deducted from the original amount
of the contract, as the case may be, — such extras or deduc-
tions, if any, to be subject to the valuation of the architect,
whose decision and valuation of them shall be final and
binding upon both the parties to the contract," — and that
portion of the instruction to which the first objection is urged
has reference to this language. It is quite clear the instruc-
tion does not, as counsel seem to believe, leave the meaning
158 County of Cook v. Harms. [Nov.
Opinion of the Court.
of this language to the jury. The jury are told what does
not mean "changes, additions and alterations," and they are
left to determine whether, as matter of fact, what was done
was what they are thus told does not mean "changes, addi-
tions and alterations." The words, "and not a mere change,
addition or alteration," etc., add nothing to the effect of those
previously used, the gist of the whole instruction lying in the
statement of what does not come within the meaning of the
words, "changes, additions and alterations." And the only
serious question is, whether the language of the instruction
is, in that respect, accurate. We think it is — at all events,
sufficiently so for all practical purposes. The contract was
made pursuant to bids or proposals previously invited by
published notices, and those bids were made upon calcula-
tions based upon the plans and specifications annexed to the
contract. We are not authorized to assume the furnishing of
these plans and specifications, and the inviting of these bids
or proposals, were intended either to entrap the unwary or
as an idle and useless ceremony ; but we must, on the con-
trary, assume they were intended in good faith, for the pur-
pose of intelligently and bona fide making a contract for the
construction of the foundation of the court house. If intended
for that purpose, the work to be done would have to conform,
in all material respects, to that described in the plans and
specifications ; and if materially variant therefrom, it would
necessarily be a new and different work, because not within
the contemplation of the parties when the contract was made.
We do not conceive that the prefixing of the word "any,"
materially enlarges the meaning of the words "changes, addi-
tions and alterations," for if there is only "change, addition
or alteration," the contract must govern; if there is more
than this, it does not, and the question is, simply, what
constitutes "changes, additions or alterations," within their
meaning as here used. Counsel insist there is no limit to
the changes, additions or alterations that may be made. If
1883.] County of Cook v. Harms. 159
Opinion of the Court.
this be true, then the advertising for bids and the stipulating
of prices in the contract were useless. The contract should
then have been drawn that the county would pay for the work
at .a valuation to be fixed by its architect.
Obviously, under a contract to construct a framed building
at stipulated prices, a party could not be required to construct
a stone or brick building, at prices to be fixed by the archi-
tect of the other party, by the use of these words in the con-
tract. Nor could a party, by virtue thereof, contracting to
build a small and inferior brick or stone building, be required
to construct a large and superior stone or brick building.
The mere combination of proportions and quantities, even of
materials of the same class or grade, may be so different in
different buildings of the same dimensions, that a party would
not make the same bid, or be able, without financial loss, to
construct them all for the same price.
The terms stated in the writing were, we think, the con-
trolling inducement to the contract, and the "changes, addi-
tions and alterations" therein provided for must have been
contemplated and intended to be but such as were incidental
to the complete execution of the work as described in the
plans and specifications, and therefore of only minor and
trifling importance, for otherwise some definite mode of de-
termining what prices should be paid for them would also
have been prescribed by the writing. We think any material
departure from the plans and specifications wuth reference to
which the contract was made, which resulted in a new and
substantially different undertaking, can not be regarded as
within the meaning of this language. We think it was only
intended to describe and provide against those ordinary and
comparatively unimportant departures from the details in
the plans and specifications which, during the progress of
the work, might become necessary, or at least convenient,
to effectually complete the work as it is contemplated by
the plans and specifications it should be completed, and
160 County of Cook v. Harms. [Nov.
Opinion of the Court.
which could not, at the date of making the contract, have
been certainly anticipated, and therefore provided against.
We can not admit that a party entering into a contract to
do a given work at stipulated prices, can, by the use of these
words in the written contract, be made to do a different and
more expensive work at prices to be named altogether, or in
large part, by the architect of the other party.
Second — If, after the contract was abandoned by the county,
Harms, by his conduct, estopped himself from availing of
that abandonment, the county could interpose the estoppel
in defence. But in case of abandonment by one party there
is no presumption of estoppel against the right of the other
party to avail of it, and hence the law of estoppel is not an
indispensable element in the doctrine of abandonment. It
may or it may not apply in such cases, and if relied upon,
it is matter of special defence. So, here, this instruction
presented a prima facie case entitling Harms to recover for
the value of the materials furnished and labor performed by
him, upon the ground that the contract had been abandoned
by the county ; and if the county relied upon the fact that
Harms was, by his conduct, estopped to say that the contract
was abandoned, it should have asked an instruction in its
own behalf presenting the law upon that phase of the case.
Undoubtedly a proposition which, in and of itself, is not
accurate without modification or qualification, if presented
in an instruction, should be accompanied with the requisite
modification or qualification. But that is not the character
of the question before us. Here the proposition, on the
assumed hypothesis, is accurate, without modification or
qualification. But there may be, and it is claimed there
is, in the evidence, sanction for a repugnant proposition,
which entirely nullifies that announced. Both, as independ-
ent propositions, may be correct, but the latter being correct,
the former is rendered inoperative. The latter, clearly, there-
fore, should be embodied in a distinct instruction. It is not
1883.] County of Cook v. Harms. 161
Opinion of the Court.
a necessary element in the instruction previously given, but
is a modifying or qualifying circumstance wholly independent
of it. The rule is, it is not required that an instruction shall
anticipate the existence of hypotheses contrary to that upon
the theory of which it is framed. It is sufficient if it rests
upon a hypothesis sustained by evidence, and states, accu-
rately and fully, the law upon that hypothesis. If the evi-
dence also fairly presents hypotheses sustaining modifying or
repugnant legal propositions, those desiring to avail of such
propositions may have them presented in separate instruc-
tions.
The next instruction given at the instance of the plaintiff,
to which objection is urged, is as follows :
"Even though the jury should believe, from all the evidence
in the case, that the written contract between plaintiff and de-
fendant, offered in evidence, was not abandoned or rescinded
by the defendant, and that the architect, Egan, had the right
to fix and determine the value of any work and materials fur-
nished by the plaintiff, and not included in the original con-
tract, plans and specifications, yet if the jury further believe,
from the evidence, that in exercising such right the architect
acted fraudulently and in bad faith, then such act would not
be binding upon plaintiff."
It is admitted by counsel for appellant that this, "consid-
ered in the abstract, asserts a correct proposition of law,"
but they deny that there was any evidence upon which to
base it. It is enough to say upon the question thus pre-
sented, that we have carefully examined the evidence pre-
served in the record, and are of opinion there is sufficient
evidence upon which to predicate the instruction. Of course,
we express no opinion as to the weight of such evidence. It
is the architect's judgment, not his arbitrary will, that the
contract makes conclusive on the questions submitted to his
decision. There is much here in evidence, which it is not
11—108 III.
162 County of Cook v. Harms. [Nov.
Opinion of the Court.
necessary that we should repeat, tending to show that the
latter was exercised, and not the former. If it be shown that
an architect in making his decision has disregarded import-
ant, clearly established or obvious facts, (of which there is
some evidence in the record,) the prima facie presumption is
that he did so willfully. (Morse on Arbitration and Award,
539.) There is, also, some evidence here of declarations of
the architect of a deliberate intention to oppress Harms, —
equivocal, it is true, in that the means were not expressed,
but warranting the inference of the intended use of arbitrary
will, instead of the exercise of an impartial judgment, in
determining the rights of the respective parties on questions
arising under the contract.
The next and the last instruction given at the instance of
the plaintiff to which objection is urged, is this :
"Even though the jury may believe, from the evidence, the
contract between plaintiff and defendant, offered in evidence,
was not cancelled by defendant, and that any work and mate-
rials furnished by plaintiff were extra under such contract,
and that the architect had authority to fix and determine the
value of such extra work and material, still he could only
exercise such right and authority in the manner provided by
said contract."
Three objections are urged: First, that it is left to the
jury to determine a matter of law ; second, that- the jury
would be authorized to consider that they must give a ver-
dict on the basis of measurement and value ; and third, that
it repels the idea that Harms could waive his right to. have
an order in writing from the architect, when required to make
"changes, additions or alterations" in the work. Neither
objection, in our opinion, is well taken. No legal proposition
is submitted to the jury. The language is hypothetical, and
states what the law is with reference to a hypothetical case,
which it is in effect assumed the defendant may claim is
18 S3.] County of Cook v. Harms. 163
Opinion of the Court.
established by the evidence. So far as the instruction refers
to the rights of the parties under the contract, it is undoubt-
edly correct ; and it., has. never been held objectionable to
assume as true in an instruction a pertinent matter about
which there is no dispute. The jury are not told they must
find these things to be facts, or that they must find what
the contract is with reference to these things, but merely
that although they may believe, etc., the law is as thus
announced.
Second — We can not perceive any reason for holding, as
contended by counsel, that the inference would result to the
jury that they must give a verdict on the basis of measure-
ment and value. The instruction does not assume to direct
on what basis a verdict should be rendered. It relates to an
entirely different subject. But to obviate all liability to mis-
apprehension by the jury in this respect, as well as in respect
to a like objection, not before noticed, taken to the second of
the plaintiff's instructions, the court, at the instance of the
defendant, instructed the jury thus :
"The court instructs the jury that if they believe, from
the evidence, that the contract entered into on the 6th day
of October, 1875, was not rescinded, and by its terms any
changes, additions or alterations, if any such should be
ordered, should not invalidate or impair the contract, but
should be paid for as extra work, or deducted from the orig-
inal amount of the contract, as the case might be, such extras
or deductions, if any, to be subject to the valuation of the
architect, whose decisions and valuations of them should be
final and binding upon both parties to the contract, and that
said Egan did submit his estimates of the value of them in
the manner provided by and in conformity with said contract,
then the parties to said contract are bound by his findings,
unless the same be fraudulent or mistaken, the burden of
proving which rests upon the plaintiff."
164 Kellogg v. Hale et al. [Nov.
Syllabus.
With this instruction before the jury we do not think, in
any view, it is reasonable to suppose that they could have
been misled on the question of damages, in the respect con-
tended, by eitlier instruction.
It is contended that there was error in the refusal of the
court to give the defendant's ninth, tenth and thirteenth
instructions as asked, and also in admitting in evidence what
the architect said he would do for the plaintiff in reference
to prices of work or manner of estimating his compensation,
and what the building committee said to plaintiff. The
rulings in these several respects present but a single question,
namely, whether the county, under the circumstances, may
be concluded and estopped by the acts and declarations of
these parties as its agents and representatives. That it may
be so concluded and estopped is settled by Sexton v. City of
Chicago, 107 111. 323, City of Chicago v. Chicago and Western
Indiana R. R. Co. 105 id. 85, and Chicago v. McGraw, 75 id.
570.
Perceiving no cause to disturb the judgment below, it is
Judgment affirmed.
Cyrus S. Kellogg
v.
Laura P. Hale et al.
Filed at Ottawa November 20, 1883.
1. Trust — when the Statute of Uses executes and passes legal title to
the person for whose use made. Where a conveyance imposes on the trustee
active duties with respect to the trust estate, such as, to sell and convert into
money, or to lease the same and collect the rents, pay taxes, and make neces-
sary repairs, etc., and pay the net proceeds to the beneficiary, it creates an
active trust which the statute does not of itself execute.
2. Where an estate is conveyed to one person for the use of, or upon a
trust for, another, and nothing more is said, the statute immediately trans-
1883.] Kellogg v. Hale et al. 165
Brief for the Plaintiff in Error.
fers the legal estate to the use, and no trust is created, although express
words of trust are used. This has reference only to passive, simple or dry
trusts. In such case the legal estate never vests in the feoffee, but is instan-
taneously transferred to the cestui que. use as soon as the use is declared.
3. Where a party conveyed real estate by a deed absolute on its face, hut
in trust to hold the title, lease the property, collect the rents, sell or recon-
vey, or make such disposition of the property as the grantor might order, it
was held, that the trust created was an active and not a passive one, and the
legal title vested in the trustee.
4. Husband and wife — settlement by husband on wife. It has long
been the settled law, both in England and in this country, that a conveyance
of property from a husband to his wife, when made as a provision for her,
will be sustained and upheld in courts of equity, when the rights of creditors
are not affected.
Writ of Error to the Circuit Court of Carroll county ; the
Hon. William Brown, Judge, presiding.
Mr. J. M. Hunter, and Mr. J. E. Hunter, for the plaintiff
in error :
The effect of a trust conveyance to his own use on the part of
Kellogg, was but to divest himself momentarily of the naked
legal title, to be reinvested by the operation of the Statute of
Uses, and the recorded deed to Peck remained only a cloud
upon Kellogg's estate and title to the land. Eev. Stat. 1845,
(Cooke & Co.'s ed.) chap. 24, pp. 958, 959, sees. 2, 3 ; Witham
v. Brooner, 63 111. 345.
The legal estate never vested in the feoffee for a moment,
but was instantaneously transferred to the cestui que use as
soon as the use was declared. 2 Blackstone's Com. 332.
The object of the statute was to abolish uses, by destroying
the estate of the feoffee to uses, and vesting it in the cestui
que use. 1 Greenleaf's Cruise on Eeal Prop, title, "Use,"
chap. 3, pp. 316, 317 ; Lynch et al. v. Sicayne et al. 83 111. 336.
This being so, Peck had nothing to convey, even if he was
duly authorized to do so ; but if complainant's wife was, by
Peck's deed, invested with color of title, she became merely
feoffee to the use of her husband.
166 Kellogg v. Hale et al. [Nov.
Brief for the Defendants in Error.
Mr. James Shaw, for the defendants in error :
A deed from a husband to a wife should be sustained in
equity, when made as a provision for her, and creditors are
not affected thereby. Gifts from husband to wife are valid,
when creditors are not injured. The duty of maintenance
which a husband owes a wife is a sufficient consideration for
voluntary conveyances vesting title in her, and courts of
equity will sustain them. Property conveyed to a wife by a
husband, or by his procurement, if no fraud is intended on
creditors, will be treated as her separate estate. 2 Kent's
Com. 115, (9th ed.) note b, 2; Schouler on Domestic Eela-
tions, (2d ed.) 281:, 287; Gill v. Wood, Admr. 81 111. 61;
Yazel v. Palmer, id. 82 ; Sheppard v. Sheppard, 7 Johns. Ch.
61 ; Sunderland v. Sunderland, 19 Iowa, 325 ; Hunt v. John-
son, 41 N. Y. 27; Sims v. Rickets, 35 Ind. 181; Sayers v.
Wall, 26 Gratt. 354; Indianapolis, Bloomington and Western
By. Co. v. McLaughlin et ux. 77 111. 275 ; City of Chicago v.
McGraw, 75 id. 566; Dale et cd. v. Lincoln, Assignee, 62 id.
22 ; Lincoln v. McLaughlin, 74 id. 11 ; Hockett et al. v. Bailey,
86 id. 74 ; Cartwright v. Wise et al. 14 id. 417 ; Pike v. Baker,
53 id. 163; Perry on Trusts, sec. 143.
If it be admitted that a trust could be established by parol
in a case like the present, — and it is not admitted, — even then
the complainant could not recover, on account of the unsat-
isfactory nature of the proofs relied on to establish the trust.
Perry on Trusts, sees. 137, 226; Woolam v. Heam, 2 L. C.
in Eq. 684; Hill on Trustees, 167; Lantry et al. v. Lantry,
51 111. 458; Parker v. Pierce et al. 16 Iowa, 227; Maple v.
Nelson, 31 id. 322; Cartwright v. Wise et al. 14 111. 417.
The Statute of Uses has no application to this case. In
both conveyances, — that from Kellogg and wife to Peck, and
from Peck and wife to Laura P. Kellogg, — the legal title and
fee passed. Meacham v. Steele et al. 93 III. 135 ; Kirkland
v. Cox et al. 94 id. 400; Perry on Trusts, sec. 738; 2 Wash-
burn on Keal Prop. sec. 20, p. 120.
18S3.] Kellogg v. Hale et at. 167
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court :
This was a bill in equity, brought by Cyrus S. Kellogg, in
the circuit court of Carroll county, against Laura P. Hale
and others, to compel a conveyance of two hundred and fifty
acres of land in Carroll county, which formerly belonged to
Kellogg, but which, at the time of filing the bill, was held by
the defendant Laura P. Hale, in her name. Kellogg was
married to Laura P. Hale in 1848, in Carroll county. They
resided there until the spring of 1853, when they moved to
California. A short time before starting, Kellogg and his
wife conveyed, by an absolute deed, the lands in controversy
to Philetus Peck. The lands were not sold to Peck, but the
understanding was that he should hold the title in his own
name, rent the farm, keep it in repair, and make such a dis-
position of the lands, by sale or reconveyance, as Kellogg
might in the future direct. In the summer of 1857 Mrs.
Kellogg returned to Carroll county on a visit. She brought
with her a letter, written by Kellogg to Peck, directing him
to convey the Carroll county lands to her. Upon the pre-
sentation of the letter Peck conveyed the lands as requested,
and Mrs. Kellogg has from that time to the present owned
and received the rents from the lands, and paid the taxes,
and kept up the repairs. At the time the deed was made to
Mrs. Kellogg, she and her husband were residing together on
good terms, and they continued to reside together until 1865,
when they separated. In 1871 she obtained a divorce from
her husband, and subsequently married Augustus Hale.
Kellogg, the complainant, seeks to obtain a decree in his
favor, as we understand the argument, on the ground that
the deed from Kellogg to Peck was a conveyance to his own
use, and under the Statute of Uses, by operation of law, he
became reinvested with the title to the property. The trust
here was not in writing. The deed was absolute in terms,
and purported to convey the title to Peck, but when the trans-
168 Kellogg v. Hale et al. [Nov.
Opinion of the Court.
action is viewed in the light of the evidence, it appears that
the property was conveyed to Peck in trust. He was to hold
the title, lease the property, collect the rents, sell or reconvey,
or make such disposition of the property as Kellogg might
order. "Was this such a trust as the Statute of Uses would
execute? The answer to this question may be found in the
former decisions of this court.
In Meacham v. Steele, 93 111. 146, where a question of this
character was under consideration, it is said: "Where the
conveyance imposes on the trustee active duties with respect
to the trust estate, such as, to sell and convert into money,
or to lease the same and collect the rents, issues and profits
thereof, and pay them over to the beneficiary, it creates a
trust which the statute does not execute." Here Peck, the
trustee, had the entire charge of the property. It was his
duty to rent, and collect the rents, pay the taxes, keep up the
repairs, and in addition to this, upon request, sell and con-
vey the property. The facts seem to bring the case directly
within the rule announced in the case cited.
In Kirkland v. Cox, 94 111. 400, the effect of the Statute
of Uses was under consideration, and it was held where an
estate is conveyed to one person, for the use of, or upon a
trust for, another, and nothing more is said, the statute im-
mediately transfers the legal estate to the use, and no trust is
created, although express words of trust are used. But this
has reference only to passive, simple or dry trusts. In such
case the legal estate never vests in the feoffee, but is instan-
taneously transferred to the cestui que use as soon as the use
is declared. The facts surrounding the conveyance in this
case do not bring the trust within what may be called a pas-
sive, simple or dry trust. The duties of the trustee had not
been performed under the trust imposed by the deed and
contract. Those duties were active, and so continued until
the lands were conveyed, under the order and direction of
Kellogg. Perry on Trusts, sec. 305, in speaking in regard
1883*.] Kellogg v. Hale et al. 169
Opinion of the Court.
to special or active trusts, says : "If any agency, duty or
power be imposed* on the trustee, as by a limitation to a
trustee and his heirs to pay the rents or to convey the estate,
or if any control is to be exercised or duty performed by the
trustee, * * * the operation of the statute is excluded,
and the trusts or uses remain mere equitable estates." But
the citation of other authorities on the question is useless.
We are satisfied that the deed made to Peck passed the title
to the property to him, unaffected by the Statute of Uses.
The only other question to be considered is, whether the
deed from Peck to Mrs. Kellogg, made under the order and
direction of Kellogg, passed the title to the property to Mrs.
Kellogg. It is true that no consideration was paid for this
conveyance, but when the deed was executed Kellogg was free
from debt, and was worth, over and above the Carroll county
lands, somewhere in the neighborhood of $20,000. He had
no children, and the business in which he was engaged at the
time was somewhat hazardous. Under such circumstances,
if he thought proper to make a .settlement of the property on
his wife he had a right to do so. It has long been settled,
both in England and this country, that a conveyance of prop-
erty from the husband to the wife, when made as a provision
for her, will be sustained and upheld in courts of equity,
when the rights of creditors are not affected. {Monte v.
Hoffman, 35 111. 553; Yazel v. Palmer, 81 id. 82; Hockett v.
Bailey, 86 id. 76.) As to the object of this conveyance there
can be no doubt. At the time, Kellogg was in good circum-
stances, in no manner involved. The relations then existing
between him and his wife were of the most intimate char-
acter. He no doubt thought it was an opportune time to
settle upon her such an amount of property as would give
her a comfortable support, if in the future adversity should
overtake him and he should be without property.
We are not, however, without proof in regard to the object
of the conveyance. Mrs. Hale, in her evidence, says : "Kel-
170
Kadish et al. v. Young et al.
[Nov.
Svllabus.
logg, at the time he wrote to Peck requesting him to convey
the land to me, stated to me that I had always been a good
wife, and that to insure me from coming to want by reason
of any business reverses he might sustain in California, he
intended to have Peck deed that land to me, to secure me
from coming to want through any reverses that might come
to him. It was his own voluntary act, without any solicita-
tion from me whatever. There was no arrangement by which
I was to hold the land for Kellogg, but it was understood to
be for myself." This testimony places the character and
object of the transaction beyond dispute. The conveyance
to Mrs. Kellogg was the result of the voluntary act of the
complainant, her then husband, and was intended as a pro-
vision for her, and we perceive no ground upon which a court
of equity can interfere, and at this late clay take the prop-
erty away from her and give it back to the complainant.
The decree of the circuit court will be affirmed.
Decree affirmed.
L. J. Kadish et al.
A. N. Young et al.
Filed at Ottaiva November 20, 1883.
1. Measuke of damages — refusal to complete purchase and pay for
goods. In ordinary cases of contracts for the sale of personal property for
future deliver}7, where the purchaser fails to receive and pay for it at the
stipulated time, the measure of damages is the difference between the contract
price and the market or current value of the property at the time and place
of delivery, and this rule is not affected by notice to the seller by the buyer
before the day of delivery that he will not receive the property, unless the
seller, upon receiving such notice, shall elect to then terminate the contract.
2. The price paid by the seller for an article by him sold and contracted
to be delivered in the future, is not a circumstance to be taken into con-
. 18S3.] Kadish et at. v. Young et al. 171
Syllabus.
sideration by the jury in determining the amount of damages the seller is
entitled to recover upon the buyer's refusal to receive and pay for the prop-
erty; and evidence of what the property cost the seller, is irrelevant and
immaterial.
3. Contract of sale — notice by purchaser to renounce the contract —
rights of the respective p>arties. Where a buyer of grain, before the time
for delivery repudiates the contract, and gives the seller notice of that fact,
the latter may act on such notice and treat the contract as ended, and bring
his action at once for a breach of the contract, or he may disregard such
notice and await the time when the contract is to be performed, and then
hold the buyer respo%sible for all the consequences of non-performance.
But in this latter case he keeps the contract alive for the benefit of the other
party as well as his own.
4. While a contract is still subsisting the parties can only be compelled to
.do that whi«h its terms require. The purchaser, by notice that he renounces
the contract, can not impose a duty on the seller to sell the^ property before
the time fixed for its delivery, to protect the former from loss, or even to
have it ready for delivery before the time fixed by the contract for delivery.
5. If a party contracting to sell grain for future delivery is notified b}' the
purchaser some time before the day provided for delivery and payment that
he renounces the contract, and the seller at that time has the grain on hand
ready for delivery, and acts upon the notice of repudiation, and accepts and
treats the contract as then broken, it will doubtless be the duty of the seller
to make a re-sale within a reasonable time, and give the buyer credit for the
proceeds of the sale.
6. Party plaintiff — in suit against purchaser on refusal to complete
contract. Where a party who has contracted to sell grain, to be delivered at
■a future time, for a given sum per bushel, before the time for delivery buys
a lot of grain to enable him to deliver the amount sold, for which he agrees
to pay one dollar a bushel certain, and one dollar and twenty cents if he
shall recover the contract price of the purchaser, it was held, in a suit against
the purchaser on refusal to receive and pay for the grain, that it in no man-
ner concerned him how much the plaintiff paid for the grain he bought, and
that the parties from whom he bought the grain were not necessary parties
plaintiff, as they had no privity of contract with the defendant.
7. Instruction — on the theory of the parties, respectively. Where a
custom is claimed on one side to exist in relation to contracts after the sale
of grain for future delivery, which is denied by the other party, and there is
evidence both ways, there is no error in instructing the jury, for the party
denying the existence of such custom, with reference to the obligations and
duties of the parties under the contract to make no mention of such custom;
and in instructing for the Other party, it is proper for the court to include
therein the hypothesis of the custom being proved.
172 Kadish et al. v. Young et al. [Nov.
Brief for the Appellant Kadish.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of
Cook county; the Hon. Joseph E. Gary, Judge, presiding.
This was an action of assumpsit, brought by A. N. Young
and George Bullen, against L. J. Kadish and Charles Fleisch-
man. A trial was had, resulting in a verdict and judgment
of $20,000 damages against the defendants.
Mr. John Woodbridge, and Mr. Francis Lackner, for the
appellant Kadish :
The refusal of Kadish, on December 16, to proceed, was
of itself a breach of the contract, and damages should have
been assessed as of that date. Danforth v. Walker, 37 Vt.
243 ; Gale v. Dean, 20 111. 320.
Damages are to be assessed, as a general rule, as of the
day when the cause of action accrues. If the notice of renun-
ciation creates a cause of action, damages are to be assessed
as of the day of such notice. Phillpotts v. Evans, 5 M. & W.
475; Hochsterv. Be La Tour, 2 E. & B. 678; Danube and
Black Sea Co. v. Zenos, 12 C. B. (N. S.) 825; Avery v. Bow-
den, 5 E. & B. 714; Reid v. Hoskins, 6 id. 953; Banick v.
Beebe, 2 C. B. (N. S.) 563.
Where one party gives notice of his intention to abandon
the contract, or inability to perform it, the other party may
act on such notice, and bring an action before the day arrives.
Fox v. Kitton, 19 111. 533; Follansbee v. Adams, 86 id. 13;
Chamber of Commerce v. Sollltt, 43 id. 521.
Such notice will excuse a tender by other party. McPher-
son v. Walker, 40 111. 373 ; 2 Parsons on Contracts, 188.
A party to an executory contract may stop its performance
by an explicit order, and will subject himself only to such
damages as will compensate the other party for being de-
prived of its benefits. Collins v. DeLaporte, 115 Mass. 162;
1SS3.] Kadish et at. v. Young et al. 173
Brief for the Appellant Fleischman.
Danforth v. Walker, 37 Vt. 240 ; Masterton v. Brooklyn, 7 Hill,
61 ; United States v. Speed, 8 Wall. 77.
It was the duty of appellees, upon receiving notice, "to
mitigate their damages by all reasonable efforts." 2 Green-
leaf on Evidence, sec. 261 ; Wood's Mayne on Damages, 86;
Sedgwick on Damages, (6th ed.) 219, side p. 361 ; Roper v.
Johnson, L. E. 8 C. P. 183 ; Hamilton v. McPherson, 28 N. Y.
76 ; Walworth v. Pool, 9 Ark. 391 ; Tufts v. Plymouth Gold
Mining Co. 11 Allen, 407; Revere v. Boston Copper Co. 15
Pick. 363 ; Bailey v. Damon, 3 Gray, 92 ; Trustees v. Shaffer,
63 111. 214.
The damages are to be considered with a view to the op-
portunities of the plaintiff to mitigate them. He is not to
be a passive observer, but to make active efforts. Bailey v.
Damon, 3 Gray, 92 ; 2 Greenleaf on Evidence, sec. 261 ; Tufts
v. Plymouth Gold Mining Co. 14 Allen, 407 ; Revere v. Boston
Copper Co. 15 Pick. 363.
Messrs. Hoadley, Johnson & Colson, for the appellant
Fleischman :
A mere purchase by one for "joint benefit" does not neces-
sarily involve a joint liability. Donnan v. Gross, 3 Bradw.
409; Hoffman v. Palmer, 67 111. 161.
Where partnership is put in issue, it must be established
by a preponderance of evidence. Smith v. Knight, 71 111.
148; Kennedy v. Hall, 68 id. 165.
If a party entitled to the benefit of a contract can protect
himself from a loss arising from a breach, he must do so, as,
one hired to labor, when discharged, must seek other employ-
ment. Miller v. Mariner's Church, 7 Greenlf. 51 ; Shannon
v. Comstock, 21 Wend. 457 ; Heckscher v. McCrea, 24 id. 303 ;
Clark v. Marsiglia, 1 Denio, 317; Spencer v. Halstead, id.
606; Hamilton v. McPherson, 28 N. Y. 72; Dillon v. Ander-
son, 43 id. 231.
174: Kadish et al. v. Young et al. [Nov.
Brief for the Appellees.
Mr. William A. Montgomery, for the appellees :
The date of the breach of a contract is that fixed for the
delivery of the goods — not that at which the buyer gives notice
that he repudiates the contract. 2 Benjamin on Sales, (4th
Am. ed.) 973; 2 Chifcty on Contracts, (11th Am. ed.) 1079;
2 Parsons on Contracts, 67G ; McPherson v. Walker, 40 111.
571 ; Crist v. Armour, 34 Barb. 378.
When the purchaser of grain to be delivered in the future
gives notice, before the time for delivery, that he will not
receive and pay for the same, if the seller does not accede to
the rescission the damages will not be assessed as of the day
of such notice, but on the day fixed by the contract for per-
formance. 1 Sedgwick on Damages, 601 ; 2 Addison on Con-
tracts, *952; Leigli v. Patterson, 8 Taunt. 540; Phillpotts
et al. v. Evans, 5 M. & W. 475 ; Brown v. Miller, 7 Law Rep.
319; Frost v. Knight, id. 111.
The notice (that he will not receive the wheat) amounts
to nothing until the time when the buyer ought to receive
the goods, unless the seller acts on it in the meantime, and
rescinds the contract by selling to another person, or other-
wise. Fox v. Kitton, 19 111. 519 ; Boor man v. Nash, 9 B. & C.
145 ; Josling v. Irvine, 6 H. & N. 512; Govt et al. v. Amber-
gate, 6 Eng. L. & Eq. 230 ; Dunlop v. Higgins, 1 H. L. Cases,
(1 CI. & Fin. N. S.) 381 ; Ripley v. McClure, 4 Ex. Bep. 344;
Hochster v. De La Tour, 20 Eng. L. & Eq. 157.
The contract in terms was to deliver in January. A cus-
tom requiring a delivery before the time named in the con-
tract is "inconsistent with the terms of the agreement between
the parties, " and therefore can not control either of the con-
tractors. Bissell v. Ryan, 23 111. 506 ; Wilson v. Bauman
et al. 80 id. 494 ; Coffman et al. v. Campbell et al. 87 id. 98 ;
Turner v. Dawson, 50 id. 85.
An action can only be maintained in the name of the per-
son who has the legal interest. Kile v. Thompson, 2 Scam.
IS S3.] Kadish et at. v. Young et al. 175
Opiuiou of the Court.
432 ; Campbell v. Humphries, id. 478 ; Corbett v. Schumacher,
83 111. 403 ; McHenry v. Fudgely, 2 Scam. 309.
Mr. Justice Scholfield delivered the opinion of the Court :
This was assumpsit, by appellees, against appellants, to
recover damages sustained by the breach of an alleged con-
tract, whereby, on the 15th of December, 18S0, appellees sold
to appellants 100,000 bushels of No. 2 barley, at one dollar
and twenty cents per bushel, to be delivered to appellants,
and paid for by them, at such time during the month of Jan-
uary, 1881, as appellees should elect. Appellees tendered to
appellants warehouse receipts for 100,000 bushels of No. 2
barley on the 12th of January, 1881, but appellants refused
to receive the receipts and pay for the barley. Within a
reasonable time thereafter appellees sold the barley upon the
market, and having credited appellants with the proceeds
thereof, they brought this suit, and on the trial in the cir-
cuit court they recovered the difference between the contract
price and the value of the barley in the market on the day
it was to have been delivered by the terms of the contract.
Upon the trial appellants denied the making of the alleged
contract, that they were partners, or that any purchase of
the barley was made for their joint account ; and they also
contended, if a contract was shown, then that on .the next
day after it was made they gave notice to appellees that they
did not consider themselves bound by the contract, and they
would not comply with its terms, and evidence was given
tending to sustain this contention.
The questions of fact contested upon the trial in the cir-
cuit court, and to some extent discussed in argument here,
are, by the judgment of the Appellate Court, conclusively
settled against appellants, and we are denied the power of
inquiring whether they are rightly or wrongly settled. Bridge
Co. v. Commissioners of Highways, 101 111. 519; Edgerton v,
176 Kadish et al. v. Young et al. [Nov.
Opinion of the Court.
Weaver, 105 id. 43 ; Indianapolis and St. Louis R. R. Co. v.
Morganstem, 106 id. 216; Missouri Furnace Co. v. Abend,
107 id. 44.
The questions of law to which our attention has been
directed by the arguments of counsel, arise upon the rulings
of the circuit judge in giving and refusing instructions. He
thus ruled, among other things, that appellants, by giving
notice to appellees on the next day after the making of the
contract that they would not receive the barley and comply
with the terms of the contract, did not create a breach of
such contract which appellees were bound to regard, or impose
upon them the legal obligation to resell the barley on the
market, or make a forward contract 'for the purchase of other
barley of like amount and time of delivery, within a reason-
able time thereafter, and credit appellants with the -amount of
such sale, or give them the benefit of such forward contract,
but that appellees had the legal right, notwithstanding such
notice, to wait until the day for the delivery of the barley by
the terms of the contract, and then, upon appellants' failure
to receive and pay for it on its being tendered, to resell it
on the market, and recover from appellants the difference
between the contract price of the barley and its market value
on the day it was to have been delivered.
That in ordinary cases of contract of sale of personal
property for future delivery, and failure to receive and pay
for it at the stipulated time, the measure of damages is the
difference between the contract price and the market or cur-
rent value of the property at the time and place of delivery,
has been settled by previous decisions of . this court, (see
McNaught v. Dodson, 49 111. 446, Larrabee v. Badger, 45 id.
440, and Saladin v. Mitchell, id. 79,). and is not contested by
appellants' counsel. But their contention is, that in case of
such contract of sale for future delivery, where, before the
time of delivery, the buyer gives the seller notice that he will
not receive the property and comply with the terms of the
1883.] Kadish et aL v. Young et al. 177
Opinion of the Court.
contract, this, whether the seller assents thereto or not, cre-
ates a breach of the contract, or, at all events,, imposes the
legal duty on the seller to thereafter take such steps with
reference to the subject of the contract, as, by at once resell-
ing the property on the market on account of the buyer, or
making a forward contract for the purchase of other property
of like amount and time of delivery, shall most effectually
mitigate the damages to be paid by the buyer in consequence
of the breach, without imposing loss upon the seller. If the
buyer may thus create a breach of the contract without the
consent of the seller, we doubt not the duty to sell, (where
the property is in the possession of the seller at the time,)
at least Within a reasonable time after such breach, will result
as a necessary consequence of the breach. When the breach
occurs by a- failure to accept and pay for property tendered
pursuant to the terms of a contract at the day specified for
its delivery, this is doubtless the duty of the seller, and no
reason is now perceived why it should not equally result from
any breach of the contract upon which the seller is legally
bound to act.
But the well settled doctrine of the English courts is, that
a buyer can not thus create a breach of contract upon which
the seller is bound to act. In Leigh v. Patterson, 8 Taunt.
540, (4 Eng. C. L. 267,) Phillpotts et al. v. Evans, 5 M. & W.
475, Ripley v. McClare, 4 Exch. 359, and, it may be, also in
other early cases-, it was held a party to a contract to be per-
formed in the future can not, by merely giving notice to the
opposite party that he will not- perform his part of the con-
tract, create a breach -of the contract. Subsequently, how-
ever, in Cort v. Ambergate and Nottingham Ry. Co. 6 Eng.
L. <fe Eq. 230, and more explicitly in Hochster v. DeLaTour,
20 id.. 157, the doctrine was announced as not in conflict
with previous decisions, that the party to whom notice is
given in such cases will be justified in acting upon the notice,
provided it is not withdrawn before he acts. Lord Campbell,
12—108 III.
178 Kadish et al. v. Young ct al. [Nov.
Opinion of the Court.
Ch. J., in delivering his opinion in the latter case, and speak-
ing for the court, used this language : "The man who wrong-
fully renounces a contract into which he has deliberately
entered, can not justly complain if he is immediately sued
for a compensation in damages by the man whom he has
injured, and it seems reasonable to allow an option to the
injured party either to sue immediately or to wTait till the
time when the act was to be done, still holding it as pros-
pectively binding for the exercise of this option, which may
be advantageous to the innocent party, and can not be pre-
judicial to the wrong-doer."
The leading text-writers who treat of this question follow
the authority of these cases, and the rule they announce is
thus expressed in Sedgwick on Damages, (6th ed.) 340, *284 :
"An effort has been made in many cases by the purchaser
to relieve himself from the contract of sale before the time
fixed for performance by giving notice that he would not be
ready to complete the agreement, and in these cases it has
been insisted that the damages should be estimated as at the
time of giving notice ; but the English courts have justly
denied the right of either party to rescind the agreement,
and have adhered to the day of the breach as the period for
estimating damages." To like effect see Chitty on Contracts,
(11th Am. eel.) 1079 ; 2 Parsons on Contracts, (6th eel.) 676 ;
Benjamin on Sales, (1st ed.) 559, (4th Am. ed.) 973; Addi-
son on Contracts, *952 ; Wood's Mayne on Damages, 250,
*150.
The question came before this court in Fox v. Kitton, 19
111. 519, whether, when a party agrees to do an act at a future
day, and before the clay arrives he declares he will not keep
his contract or do the act, the other party may act on such
declaration, and bring an action before the day arrives ; and
it was held, on the authority of Phillpotts v. Evans, and Hoch-
ster v. De La Tour, supra, that he may; and in that case it is
said, in the opinion of the court, that there is no conflict in
1883.] Kadish et al. v. Young et al. 179
Opinion of the Court.
the cases referred to by counsel in the discussion thereof,
and to prove it, this language from the opinion of Parke,
Baron, in Phillpotts v. Evans, is quoted: "The notice (that
he will not receive the wheat) amounts to nothing until the
time when the buyer ought to receive the goods, unless the
seller acts on it in the meantime, and rescinds the contract."
And it is then added: "This is in strict accordance with
the principles recognized in the leading case relied on by the
plaintiff, — Hochster v. De La Tour. "
In McPherson v. Walker, 40 111. 371, the question before
the court was, whether it was error to say in an instruction
that where there is a contract for the sale of property to
be delivered in the future, a tender or offer of the property
by the seller on the clay of delivery is excused by a previous
notice of the buyer that he would not accept the property,
and it was held that it was. In the opinion of the court it
is said: "The rule is, if one bound to perform a future act,
before the time for doing it declares his intention not to do
it, this, of itself, is no breach .of his contract ; but if this
declaration be not withdrawn, when the time arrives for the
act to be done it constitutes a sufficient excuse for the default
of the other party," — referring to 2 Parsons on Contracts,
188, Hochster v. De La Tour, supra, and Crist v. Armour, 34
Barb. 378.
In Chamber of Commerce v. Sollitt, 43 111. 519, the charac-
ter of question is the same as in the two preceding cases to
which we have just referred, and it was decided the same way.
Cort v. Ambergate Ry. Co., supra, Hochster v. De La Tour,
supra, and Fox v. Kitton, supra, are referred to as sustaining
the decision.
In Cummings v. Tilton, 4^4: 111. 173, one of the points de-
cided was, if the party who is to receive informs the party
who is to deliver that he can not pay the money, the latter is
excused from offering to deliver, — but there is no discussion
of the question.
180 Kadish et at. v. Young et al. [Nov.
Opinion of the Court.
Follansbee v. Adams, 86 111. 13, involved the same question
as that decided in Fox v. Kitton, supra, and on >the authority
of that case, and Chamber of Commerce v. Sollitt, supra, it
was decided the same way.
While it is true in none of these cases was the question
whether one party to a contract may, by only a notice of
his intention not to comply with its terms, create a breach
of the contract, before the court, still, in all of them it is
assumed that he can not, for if he could, the questions they
decide would have been immaterial, and the English cases
which they profess to follow, as has been seen, expressly
hold that he can not.
But counsel insist this court has held the contrary in Gale
v. Dean, 20 111. 320, and in Trustees v. Shaffer, 63 id. 244.
This is a misapprehension. Neither case professes to dis-
cuss the question before us, and no notice is taken in either
of the decisions or dicta to which we have above referred.
In Gale v. Dean no time was fixed by the terms of the con-
tract for its performance, and in view of this omission the
court held it reasonable that after the lapse of a reasonable
time either party might declare a breach of the contract, if
not performed ; and it was in reference to this omission and
these reciprocal rights of the parties under the contract,
solely, that the court used the language quoted and relied
upon by counsel for appellants, namely, that "we do not
think that Gale, when he found he could not perform, was
absolutely at the mercy of Dean for the determination of the
time when his liability should be fixed and the measure of
that liability determined." It had not the slightest reference
to the character of question now before us. In the other
case, {Trustees v. Shaffer,) the time for the performance of
the contract had arrived. There was no question in that
respect. If the plaintiff was improperly discharged, there
was a clear breach of the contract. There was no contro-
versy in regard to the question whether one party to a con-
1SS3.] Kadish et al. v. Young et al. 181
Opinion of the Court.
tract to be performed in the future, can, by a mere notice in
advance of the time of performance that he does not intend
to perform, create a breach of the contract; nor was there
any question as to what acts a party may be required to do
in advance of a breach of contract to mitigate the damages
of the adverse party, because of notice that there would be a
breach by him. After breach of a contract, as before herein
intimated, we do not, at present, question that it is the duty
of the party entitled to damages to do what he reasonably
may, without prejudice to his rights, to lighten the burden
falling on his adversary.
There is nothing in the more recent English cases, as we
understand them, repugnant to those to which we have re-
ferred upon this question.
In Frost v. Knight, L. E. 7 Exch. Ill, (1 Moak, 218,)
decided in the Exchequer Chamber in February, 1872, the
suit was for breach of a marriage contract, whereby the
defendant had promised to marry the plaintiff upon the death
of his father, but the father still living, the defendant had
announced his intention of not fulfilling his promise on his
father's death, and broke off the engagement. Cockburn,
Ch. J., in delivering the opinion of the court, thus states the
law, after referring to the previous decisions: "The prom-
isee, if he pleases, may treat the notice of intention" (i. e.,
not to perform the contract,) "as inoperative, and await the
time when the contract is to be executed, and then hold the
other party responsible for all the consequences of non-per-
formance ; but in that case he keeps the contract alive for
the benefit of the other party as well as his own. He remains
subject to all his own obligations and liabilities under it, and
enables the other party not only to complete the contract, if
so advised, notwithstanding his previous repudiation of it,
but also to take advantage of any supervening circumstances
which would justify him in declining to complete it. On the
other hand, the promisee may, if he thinks proper, treat the
182 Kadish et al. v. Young et at. [Nov.
Opinion of the Court.
repudiation of the other party as a wrongful putting an end
to the contract, and may at once bring his action as on a
breach of it, and in such action he will be entitled to such
damages as would have arisen from the non-performance of
the contract at the proper time, subject, however, to abate-
ment in respect of any circumstance which may have afforded
him the means of mitigating his loss." This was followed,
and its doctrine reiterated, in Brown v. Miller, L. K. 7 Exch.
319, (3 Moak, 429,) decided in the Court of Exchequer in
June, 1872, and Roper v. Johnson, L. E. 8 C. P. 167, (4
Moak, 397,) decided in the Common Pleas in February, 1873.
Counsel for appellants refer to the fact that Keating, J., in
Roper v. Johnson, says : "If there had been any fall in the
market, or any other circumstances calculated to diminish
the loss, it would be for defendant to show it, " — and then
cites with approval from the opinion of Cockbukn, Ch. J., in
Frost v. Knight, supra, to the effect that "the damages are
subject to abatement in respect of any circumstances which
would entitle him to a mitigation," etc., and insist they recog-
nize the duty, here, of appellees, upon receiving notice, etc.,
to have sold upon the market or have entered into another
contract for January delivery, etc. It is enough to observe
in answer to this, that in both Frost v. Knight and Roper v.
Johnson, supra, the notice that defendant would not comply
with the contract was accepted and acted upon by the plain-
tiff as a breach of the contract ; and so what was said in
respect of the duty of the plaintiff to mitigate damages was
said with reference to a case wherein he recognized the con-
tract as having been broken by the notice of the adverse
party, and with reference to what was to be done by him upon
and after the recognition of that breach, and hence can have
no application here. If a party is not compelled to accept
the declarations of the other party to a contract that he will
not perform it, as a breach, it must logically follow that he
is under no obligation to regard that declaration for any pur-
18S3.] Kadish et al. v. Young et al. 183
Opiuiou of the Court.
pose, for, as we have seen, the theory in such case, as laid
down by Cockburn, Ch. J., in Frost v. Knight, supra, is : "He
keeps the contract alive for the benefit of the other party as
well as his own. He remains subject to all his own obliga-
tions and liabilities under it, and enables the other party not
only to complete the contract, if so advised, notwithstand-
ing his previous repudiation of it, but also to take advantage
of any supervening circumstance which would justify him in
declining to complete it."
Nothing would seem to be plainer than that while the con-
tract is still subsisting and unbroken, the parties can only
be compelled to do that which its terms require. This con-
tract imposed no duty upon appellees to make other contracts
for January delivery, or to sell barley in December, to protect
appellants from loss. It did not even contemplate that ap-
pellees should have the barley ready for delivery until such
time in January as they should elect. If appellees had then
the barley on hand, and had acted upon appellants' notice,
and accepted and treated the- contract as then broken, it
would, doubtless, then have been their duty to have resold
the barley upon the market, precisely as they did in January,
and have given appellants credit for the proceeds of the sale ;
but it is obviously absurd to assume that it could have been
appellees' duty to have sold barley in December to other
parties which it was their duty to deliver to appellants, and
which appellants had a legal right to accept in January.
We have been referred to Dillon v. Anderson, 43 N. Y. 232,
Danforth et al. v. Walker, 37 Vt. 240, (and same case again
in 40 Vt. 357,) and Collins v. De Laporte, 115 Mass. 159, as
recognizing the right of either party to a contract to create a
breach of it obligatory upon the other party, by giving notice,
in advance of the time for the commencement of the perform-
ance of the contract, that he will not comply with its terms.
An examination of the cases will disclose that they do not go
so far, but that they are entirely in harmony with what we
184 Kadish et ah v. Young et al. [Nov.
Opinion of the Court.
have heretofore indicated is our opinion in respect of the law
applicable to the present question.
In Dillon v. Anderson, the action was for a breach of con-
tract for the construction of a pair of boilers for a steamboat.
After work had been commenced under the contract, and a
certain amount of material had been purchased therefor by
the plaintiff, notice was given by the defendant to stop work,
that the contract was rescinded by the defendant, and that
he would make the plaintiff whole for any loss he might suffer.
The court held that it was the duty of the plaintiff, as soon
as he received the notice, to have so acted as to save the de-
fendant from further damage, so far as it was in his power.
In Danforth et al. v. Walker, 37 and 40 Vt., the defendant
made a contract with the plaintiffs to purchase of them five
car loads of potatoes, being fifteen hundred bushels, to be
delivered at a designated place as soon as the defendant
should call for them, and as soon as he could get them away,
some time during the winter. Soon after the first car load
was taken, potatoes fell in the market, and the defendant
thereupon wrote the plaintiffs not to purchase any more pota-
toes until they should hear from him. The court held this
created a breach of the contract, and that plaintiffs were not
authorized to purchase any more potatoes on account of the
defendant after they received the notice. The court, in the
case in 37 Vt., on page 244, use this language: "While a
contract is executory a party has the power to stop per-
formance on the other side by an explicit direction to that
effect, by subjecting himself to such damages as will com-
pensate the other party for being stopped in the performance
on his part at that point or stage in the execution of the con-
tract. The party thus forbidden can not afterwards go on,
and thereby increase the damages, and then recover such
increased damages of the other party. " And this same rule,
upon the authority of these cases, is laid down in 2 Suther-
land on Damages, 361.
18S3.] Kadish et al. v. Young et al. 185
Opinion of the Court.
The points in issue in Collins v. De Laporte, are not per-
tinent to the present question, but in the opinion the court
quotes the rule as above laid down, upon the authority of
Danforth et al. v. Walker, and other cases.
It will be observed that in each of these cases the time for
the performance of the contract had arrived, and its perform-
ance had been entered upon. In neither of them was the
defendant at liberty, after notifying the plaintiff not to pro-
ceed further in the performance of the contract, to demand
that he should proceed to perform it, as it was said in Frost
v. Knight, supra, the defendant was, in case of notice, not to
perform a contract the time of the performance of which is
to commence in the future. In these cases there is no time
or opportunity for repentance or change of mind, — in those
there was. That it was not intended, by these cases, to
trench upon the doctrine of Leigh v. Patterson, Phillpotts v.
Evans, and other cases of like character, is manifest from the
fact that they make no reference to those cases, or to the rule
they announce ; and in Collins v. De Laporte, no reference
is made to Daniels v. Newton, reported in the next preceding
volume, (114'Mass. 530,) wherein that court refused to follow
the modification made in Hochster v. De La Tour, and Frost
v. Knight, of the rule recognized by the preceding English
decisions, but held that an action for the breach of a written
agreement to purchase land, brought before the expiration
of the time given for the purchase, can not be maintained
by proof of an absolute refusal, on the defendant's part, ever
to purchase. It follows that, in our opinion, the ruling on
the point in question was free of substantial objection.
Objection is urged, because the circuit judge gave an in-
struction, at the instance of appellees, with reference to the
obligations and duties of the parties under the alleged con-
tract of sale, in which no mention is made of a custom affect-
ing those obligations and duties, of which custom proof was
introduced on the trial. The existence of this custom was
186 Kadish et al. v. Young et al. [Nov.
Opinion of the Court.
, i
not conceded. Appellants claimed its existence, and appel-
lees denied it. There was evidence both ways. This instruc-
tion presented the law correctly upon appellees' theory of the
case, and the seventh instruction, given at the instance of
appellants, presented the law, — including the hypothesis of a
custom being proved, — upon their theory of the case. There
is no repugnance between them. Each simply presents a
different theory of the case, having evidence tending to sus-
tain it, — and in this there is no error. City of Chicago v.
Schmidt, Admx. 107 111. 186; Illinois Central R. R. Co. v.
Swearingen, 47 id. 206.
There was proof, upon the trial, tending to show that
although appellees owned and had in their possession, at the
time of the making of the alleged contract, an amount and
kind of barley equal to or greater than that professed thereby
to be sold, yet that they then only had of the warehouse re-
ceipts, which they actually tendered to appellants in January,
those for 48,500 bushels, and that they subsequently obtained
from Huck & Lefens the warehouse receipts for the remaining
51,500 bushels, upon a contract, whereby appellees agreed to
pay Huck & Lefens therefor, at all events, one dollar per
bushel, and one dollar and twenty cents per bushel if appellees
shall recover from appellants in this suit. The court, in
giving and refusing instructions, ruled that this in nowise con-
cerned appellants, — that if the facts were as claimed, it did
not make Huck & Lefens necessary parties to the suit, nor
entitle appellants to any reduction in the measure of damages.
In this there was surely no error. Huck & Lefens have no
privity of contract with appellants, and whether appellees
pay much or little for the barley with, which to comply with
their contract, can not concern appellants. It was sufficient
they owned and tendered the barley at the appointed time.
If it had been given them, their measure of damages must be
precisely the same as it would be had they paid ten-fold more
1883.] Kadish et at. v. Young et al. 1S7
Opinion of the Court.
than it was worth. The only effect of the transactions by
which they obtained the barley is to vest title in them, and
when it was thus vested it was absolutely theirs to do with
as they pleased. No court, so far as our researches have
enabled us to know, ever held that the price paid by the
seller for an article sold and contracted to be delivered in
the future, was a circumstance to be taken into consideration
by the jury in determining the amount, of damages the seller
is entitled to recover upon the buyer's refusing to receive
and pay for the property, and the distinguished counsel rep-
resenting appellants have been unable to refer us to any
such decision.
Objection is also taken to the language of the instruction
with reference to the joint liability of appellants. The lan-
guage of the instruction is objectionable, but, in our opinion,
it is not possible that it could have misled the jury. The
question was put in issue whether appellants were partners
in the transaction, by proper pleadings. Evidence was intro-
duced by each party on that question. There was not a
particle of -evidence tending to show that appellants were
jointly interested in the transaction, if interested at all,
otherwise than as partners. If the evidence in behalf of
appellees prevailed, appellants were partners in the trans-
action ; if that in behalf of appellants prevailed, they were
not.
Upon the whole, we perceive no error of law in the rulings
below. The judgment is therefore affirmed.
Judgment affirmed.
188 Dobbins, Admr. v. Cruger, Admx. [Nov.
Syllabus.
William J. Dobbins, Admr.
v.
Sarah J. Cruger, Admx. et al.
Filed at Ottawa November 20, 18S3.
1. Assignment — a judgment not assignable. A judgment is not assign-
able, either at the common law or under the statute, so as to vest the legal
title in the assignee. It is a mere chose in action, and only the beneficial
interest, whatever that may be, passes to the purchaser.
2. Same — assignee holds subject to all defences. The assignee of a
judgment takes it subject to all infirmities that existed between the parties to
the record.
3. Fraudulent conveyance — vendor and purchaser — whether a
grantor who has given covenants for title, may question that title. Prop-
erty conveyed to the wife of a judgment debtor by the usual warranty deed,
can not, in the absence of any fraud on the part of the grantee, or of the
debtor, towards the grantor, be subjected to the payment of a judgment in
favor of the grantor, obtained before the making of the conveyance, — and
this upon the principle, that a warrantor will not be permitted to assail a title
which he has covenanted to maintain.
4. It is a rule, that when a person has conveyed lands by deed with full
covenants of warranty, he will not be suffered to allege the lands are the
property of another than his grantee. His deed will work an estoppel in that
regard.
5. Or, if it appear that the grantor in a deed to the wife of a debtor
made the deed with the knowledge that it was a scheme to hinder and delay
other creditors of such debtor in the collection of their just debts, the grantor
can not himself be permitted to challenge the validity of his own convey-
ance, made in furtherance of such scheme, — certainly not so far as his own
preexisting claim is concerned.
6. And if it be shown the grantor in such case permitted the debtor to
pay his own money for property being conveyed to the wife of the latter, at
a time when the grantor, one of the creditors, alleges his debtor was insol-
vent, and largely indebted to other persons, — that would be a fraud upon
the other creditors, and as the grantor thus enabled the debtor to make such
a disposition of his property, neither he, nor his assignee standing in his
shoes, will be permitted to allege the fraud, or derive any advantage from
the transaction.
18S3.] Dobbins, Admr. v. Cruger, Admx. 189
Brief for the Plaintiff in Error.
Writ of Error to the Appellate Court for the Second Dis-
trict ; — heard in that court on writ of error to the Circuit Court
of Peoria county; the Hon. N. M. Laws, Judge, presiding.
Messrs. Hopkins & Hammond, for the plaintiff in error :
When the funds of one person are put into the purchase of
land, and the legal title taken to another, the equitable title
vests at once in the party whose money went into the pur-
chase. When an insolvent debtor invests his funds in lands
and has the legal title placed in another, such debtor is the
equitable owner to the extent that his funds went into the
purchase, and the lands are subject to the payment of his
existing debts. The following authorities sustain the fore-
going points: Stevenson v. Thompson, 13 111. 186; Perry v.
McHenry, id. 227 ; Williams v. Brown, 14 id. 200 ; Seaman
v. Cook, id. 501; Nichols v. Thornton, 16 id. 113; Bruce v.
Rouney, 18 id. 67; Franklin v. McEntyre, 23 id. 91; Loomis
v. Loomis, 28 id. 454; Sheldon v. Harding, 44 id. 68; Holmes
v. Holmes, id. 168 ; Roberts v. Opp, 56 id. 34; Tyler v. Daniel,
65 id. 316; Cookson v. Richardson, 69 id. 137; Mason v.
Showalter, 85 id. 133; Emmons v. Moore, id. 304; Smith
v. Smith, id. 189 ; Lofton v. Witboard, 92 id. 461 ; Cramer
v. Hoose, 93 id. 503; MathisY. Stufflebeam, 94 id. 481; Perry
on Trusts, sees. 126, 127; 1 Leading Cases in Equity, 203,
210, 333-364.
If the husband's solvency is such that he may make a set-
tlement upon his wife by purchasing lands and placing title
in her without jeopardizing or materially impairing the rights
of his creditors, he may lawfully do so, but otherwise such
gift and title to the wife are fraudulent and void as to exist-
ing creditors. Moritz v. Hoffman, 35 111. 553 ; Gridley v.
Watson, 53 id. 186; Sweeney v. Damron, 47 id. 450; Bridg-
ford v. Riddell, 55 id. 261 ; Pratt v. Myers, 60 id. 23 ; Mitchell
et al. v. Byrne, 67 id. 522 ; Emerson v. Bemis, 69 id. 537 ;
Griffin v. First Nat. Bank, 74 id. 259.
190 Dobbins, Admr. v. Cruger, Admx. [Nov.
Brief for the Defendants in Error.
Messrs. Puterbaugh & Puterbaugh, for the defendants in
error :
A judgment is not assignable at common law, or under
the statute, so as to vest the legal title in the assignee. The
assignee will take the judgment subject to all the equities
existing between the original parties. Hughes v. Trailer nf 64
111. 48; Hossack v. Underwood, 55 id. 123; McJilton v. Love,
13 id. 486 ; Chamberlain v. Bay, 3 Cow. 353 ; Jeffries v. Evans,
6 B. Mon. 119.
The assignee of a judgment occupies no more favored po-
sition than that of the assignor. Padfield v. Green, 85 111.
529; Himrod v. Baugh, id. 435; Allen v. Watts, 79 id. 284;
Olds v. Cummin gs, 31 id. 188.
Dobbins, by his warranty deed to Mrs. Cruger, is estopped,
in both law and equity, from questioning her title as fraudu-
lent in respect to creditors of her husband. Andrews v. Cole-
man, 82 111. 26 ; Hoppin v. Hoppin, 96 id. 272 ; Jones v. King,
25 id. 3S7; NeedhamY. Clang, 62 id. 344; Bigelow on Estop-
pels, 241.
• A deed made to a wife to hinder and delay creditors of her
husband is binding inter partes, and the grantor is estopped
to allege the fraud. Grant v. Morse, 22 N. Y. 323 ; Phillips v.
Wooster, 36 id. 412; French v. Mehan, 56 Pa. St. 2S6 ; Clark
v. Baker, 14 Cal. 630.
A conveyance of a debtor's property is void only as to
existing creditors when made to defraud them, and not as to
subsequent creditors. Woolbridge v. Gage, 68 111. 157; Mixell
v. Lutz, 34 id. 3S2; T unison v. Chamblin, 88 id. 378. See,
also, as to the rights of subsequent creditors : Union Mutual
Life Ins. Co. v. Spaids, 99 111. 249 ; Moritz v. Hoffman, 35
id. 553 ; Phillips v. North, 77 id. 243 ; Sweeney v. Damron,
47 id. 451 ; McLaurie v. Partlow, 53 id. 340 ; Crawford v.
Logan, 97 id. 396.
If, at the time of making a voluntary settlement by a
father upon his children, he still retains sufficient property
1883.] Dobbins, Admr. v. Cruger, Admx. 191
Opinion of the Court.
to pay all his debts, such settlement can not be impeached,
unless it is fraudulent in fact. Merrell v. Johnson, 96 111.
224; Fanning v. Russell, 94 id. 386.
Mr. Justice Scott delivered the opinion of the Court :
Although the argument in this case has been elaborated at
great length, the views entertained by the court on what are
thought to be the controlling questions in the case may be
shortly stated. The bill is the usual creditor's bill, and its
purpose is to subject certain real estate conveyed by Thomas
S. Dobbins to Mary J. Cruger, by warranty deed containing
full covenants, to the payment of a judgment recovered by
the grantor against William H. Cruger, the husband of the
grantee, which judgment had been recovered long before the
making of the deed. The bill was brought by the assignee
of the original judgment creditor, and since her death the
suit has progressed in the name of her executor. The case
may be treated as though the bill had been filed by the
original judgment creditor. It is but re-stating the former
decisions of this court to say a judgment is not assignable at
common law, or under the statute, so as to vest the legal title
in the assignee. It is a mere chose in action, and only the
beneficial interest, whatever it may be, passes to the pur-
chaser. In this case the assignee of the judgment takes it
subject to all infirmities that existed between the parties to
the record. The case is not therefore embarrassed by any
collateral consideration, and it will be determined precisely
as though the present litigation was confined to the original
parties interested.
In the view taken of the case it will not be necessary to
determine whether the original transaction was, in fact, a
fraudulent scheme on the part of William H. Cruger to hin-
der and delay his creditors in the collection of their just
debts against him, or to ascertain what portion, if any, of
192 Dobbins, Admr. v. Cruger, Admx. [Nov.
Opinion of the Court.
the purchase money of the property conveyed to Mrs. Cruger
was in fact paid by him out of his own private funds. Both
parties concede that a portion of the purchase money was
paid from the separate funds of the grantee, derived from
sources other than her husband. The effect of what the
court is asked to decide is, that property conveyed to the
wife of the judgment debtor, by the usual warranty deed,
may be subjected to the payment of a judgment in favor of
her grantor, obtained long before the making of the deed to
her. This, it is thought, can not be done. The principle is,
a warrantor will not be permitted to assail a title he has
solemnly covenanted to maintain. It would be a solecism
to say a party may destroy that which, at the same instant,
he must uphold. How could he secure his grantee in the
quiet enjoyment of the premises, and yet subject the property
to the payment of a preexisting indebtedness that might ulti-
mately defeat the object of his grant? That would present
a difficulty that could not well be overcome. It is, of course,
impossible for the grantor, at the same time, to maintain the
title to the property, and yet assail it as fraudulent as to
himself.
The case seems to have been tried in the circuit court on
the theory of the last amended bill, — that is, that at the time
of the sale and conveyance of the property to Mrs. Cruger
both she and her husband represented to the grantor that
Mrs. Cruger had sufficient property and means in her own
right with which to purchase and pay for the property, which
representation he believed to be true, and on the faith of the
same conveyed the premises to her, and that when the deed
was delivered to her it was further represented she could not
immediately procure the $5000, with which to make the cash
payment, from her father's estate, but that her husband
would, and did, advance the same temporarily for her, upon
her undertaking she would reimburse him when funds should
thereafter be received from her father's estate. This allega-
1883.] Dobbins, Admr. v. Cruger, Admx. 193
Opinion of the Court.
tion in the bill was doubtless made with a view to repel the
idea the judgment creditor voluntarily and knowingly parti-
cipated in what it is now alleged was a fraudulent scheme to
hinder and delay the creditors of William H. Cruger in the
collection of their just claims, of whom he was himself one.
Unless this theory of the case can be maintained, it is not
perceived how complainant can have any standing in a court
of equity, for if it shall be once ascertained the judgment
creditor voluntarily and knowingly participated in a fraudu-
lent scheme to hinder and delay other creditors of William
H. Cruger in the collection of their just debts, neither he nor
his assignee can be permitted to challenge the validity of his
own conveyance made in pursuance of that scheme, — cer-
tainly so far as his preexisting claim is concerned. The
answer of defendants denies the allegations of the bill in this
respect, and, even treating the answer as not being under
oath, it can hardly be said the bill, so far as that* most
material allegation is concerned, is sustained by any fair
preponderance of the evidence. Both of the defendants state
most positively they made no such representations, and there
is but little, if anything, in the record, other than the testi-
mony of the grantor, to overcome their positive denial. His
testimony, unaided by other proof, is not sufficient to over-
come the testimony given by the defence. The bill itself
alleges William H. Cruger made the first payment of $5000
out of his own funds, and if there was no agreement on the
part of his wife to repay, it is plain the grantor permitted
his judgment debtor to pay his own money for property he
was conveying to his wife, at a time when he alleges his
debtor was insolvent, and largely indebted to other persons.
That would be a fraud on the other creditors of William H.
Cruger, and as the grantor enabled him to make such a dis-
position of his property, neither he, nor his assignee stand-
ing in his shoes, will be permitted to allege the fraud, or
derive any advantage from the transaction. Other payments
13—108 III.
194 Dobbins, Admr. v. Cruger, Admx. [Nov.
Opinion of the Court.
were made by Cruger out of his own funds on the notes given
by his wife to secure the deferred installments, and were
knowingly received by the grantor. His request made to
William H. Cruger, to allow payments made out of his own
funds to be credited on his judgment indebtedness to the
grantor, was refused, and such payments were accordingly
applied to the extinguishment of his wife's notes given for
the property. It is a rule, resting on sound principle, that
where a party conveys lands by deed, with full covenants of
warranty, he will not be suffered to allege it is the property of
any one other than his grantee. His deed works an estoppel
in that regard. That principle has its application to the facts
of the case being considered. Here the grantor conveyed the
premises to the wife of his debtor by warranty deed, volun-
tarily, and with the full knowledge his debtor was paying at
least a part of the purchase money out of funds that should
equitably have been appropriated to the payment of the
claims of his creditors. Under such circumstances neither
the grantor, nor any one standing in his shoes, will be allowed
to assert the transaction was illegal, and make it the basis of
equitable relief in his own favor. The following cases sus-
tain in some degree the views here expressed, and some of
them bear a close analogy to the case in hand, and are there-
fore authorities in point : Jones v. King, 25 111. 383 ; Needham
v. Clary, 62 id. 344 ; Grant v. Morse, 22 N. Y. 323 ; Phillips v.
Wooster, 36 id. 412; French v. Mehan, 56 Pa. St. 286; Clark
v. Baker, 14 Cal. 630.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Mr. Justice Dickey took no part in this decision.
1883.] Barton v. De Wolf et ah 195
Syllabus. Brief for the Appellant.
George P. Barton
v.
Calvin De Wolf et al.
Filed at Ottawa November 20, 1883.
1. Specific performance — contracts for sale of personally. To au-
thorize a court of equity to specifically enforce agreements respecting goods,
chattels, stocks, choses in action, and other things of a merely personal
nature, it must appear or be shown that the remedy at law is inadequate.
A court of equity will not exercise jurisdiction when there is a complete and
satisfactory remedy at law for damages.
2. The fact that a purchaser of stock in a corporation is an employee of
such corporation, and interested in its success, affords no ground for a spe-
cific performance of the contract of sale by a court of equity
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Circuit Court of Cook
county ; the Hon. T. A. Moran, Judge, presiding.
Mr. James S. Murray, for the appellant:
A bill for specific performance will be sustained for the
purchase of chattels, when the purchaser has a special object
in obtaining the particular thing purchased. It appears that
appellant is employed by the company on a salary, that his
brother is secretary, and that fifteen out of the thirty-four
stockholders were employed by the company, and that the
stock is not upon the market, except at rare intervals. Fry
on Specific Per. sees. 36, 37, note; 1 Story's Eq. Jur. sees.
717, 717a, 718; Pierce v. Plumb, 74 111. 326.
It was contended that De Wolf had the right to revoke the
offer he had made after Barton signified his acceptance of it.
It is conceded that he might have revoked it before accept-
ance, but we claim that acceptance within the time given,
and before revocation, binds the party. 1 Parsons on Con-
tracts, *480 ; Boston and Maine R. R. Co. v. Bartlett, 3 Cush.
224.
196 Barton v. DeWolf et al. [Nov.
Brief for the Appellees.
Messrs. J. P. & T. K. Wilson, for the appellees :
There was no sufficient tender of the money. De Wolf v.
Long, 2 Gilm. 679 ; Doyle et al. v. Teas et al. 4 Scam. 203 ;
Wright v. McNeely, 11 111. 241 ; Webster v. French et al. id.
255; Knox v. Light, 12 id. 86; Stowe v. Russell, 36 id. 18;
Hartwell v. Black, 48 id. 301.
The appellant is not entitled to a specific performance,
because the alleged contract is vague, uncertain, not suffi-
ciently proven, or founded upon mistake, — in either of which
cases the court will leave the party to his legal remedy.
Fitzpatrick v. Beattie, 1 Gilm. 554 ; Broad well v. Broadwell, id.
599 ; Frisby v. Ballance et al. 4 Scam. 287 ; Trailer v. Hill,
2 id. 364; Johnson v. Dodge, 17 111. 433; Lear v. Choteau,
33 id. 39 ; Bowman v. Cunningham, 78 id. 48 ; Proudfoot v.
Wightman, id. 553 ; Fleischman v. Moore, 79 id. 539 ; Under-
ivood v. Hitchcock, 2 Yes. 279 ; Seymour v. Delaney, 3 Cow.
505.
A specific performance is not decreed as a matter of course,
even in cases where there is no mistake, and no failure in
proof. It rests in the sound discretion of the court. Frisby
v. Ballance et al. 4 Scam. 287; Fish v. Leser, 69 111. 394;
Alexander v. Hoffman, 70 id. 114; Hoyt v. Tuxbury et al. id.
331 ; Rutherford v. Sargent, 71 id. 339 ; Gosse v. Jones, 73
id. 508 ; Franz v. Orton, 75 id. 100 ; Bowman v. Cunning-
ham, 78 id. 48; Ralls v. Ralls, 82 id. 243; Beach v. Ztyer,
93 id. 295 ; Eastman v. Plummer, 46 N. H. 478 ; Willard's
Eq. Jur. 263.
In almost every case above reported there was no dispute
as to the fact or the terms of the contract.
Equity will not usually entertain jurisdiction to enforce
specific performance of contracts relating to personal prop-
erty. Unless some valuable privilege is to be obtained by
the purchase of stocks, courts will not compel the specific
performance of contracts of purchase, and they will scruti-
1883.] Barton v. DeWolf et al. 197
Opinion of the Court.
nize the nature and character of such valuable privilege.
Pierce v. Plumb, 74 111. 326; 3 Parsons on Contracts, 371.
Mr. Justice Walker delivered the opinion of the Court :
Appellant filed his bill in the Cook circuit court, for the
specific performance of a contract to sell fifty shares of
the stock of the Western Electric Manufacturing Company.
The shares were for $100 each. It is claimed that appellee
DeWolf bargained to sell to appellant the shares, and appel-
lant agreed to receive and pay for them at their par value,
but on a tender of the price and a demand of the stock by
appellant, DeWolf failed and refused to deliver the shares of
stock. On a hearing on the bill, answer and proofs, the court
below dismissed the bill. Complainant appealed to the Ap-
pellate Court for the First District, where, on a hearing, the
decree of the circuit court was affirmed, and the case is
brought to this court and a reversal is asked.
The evidence in the case is inharmonious and by no means
satisfactory, but in the view we take of the case it will be
unnecessary to discuss it. The rule "is not to entertain juris-
diction, in equity, for a specific performance of agreements
respecting goods, chattels, stock, choses in action, and other
things of a merely personal nature ; yet the rule is (as we
have seen) a qualified one, subject to exceptions, — or, rather,
the rule is limited to cases where a compensation in damages
furnishes a complete and satisfactory remedy." (2 Story's
Eq. sec. 718.) Thus it is seen that a court of equity will not
exercise jurisdiction where there is a complete and satisfac-
tory remedy at law.
There has, as in other cases, been some diversity in the
application of the rule. Appellant refers to Pierce v. Plumb,
74 111. 326. That case adopts the same rule as laid down by
Story. It was announced in that case that equity would not
entertain jurisdiction to enforce a specific performance of a
198 Barton v. DeWolf et al. [Nov.
Opinion of the Court.
contract for the sale of chattels where there is an adequate
remedy at law. In that case there was a contract, among
other things, to transfer $15,000 of railroad stock, and the
bill, among other things, sought a specific performance of
that portion of the contract, but it was held that there was
a complete remedy at law, and the relief sought was denied.
To authorize a decree for the performance of such a contract
specifically, it must appear that the remedy at law is inade-
quate. This, from all of the adjudged cases, seems to be
indispensable. Then, has appellant brought himself within
the exceptional rule ? We think not. If there was a con-
tract for the sale of the shares of the stock, and a breach of
the contract, he can be fully compensated in damages at law.
No such peculiar case is made by appellant as requires a
court of equity to interfere. No such special circumstances
are shown as to take the case out of the general rule. It is
true that it is alleged that this stock is seldom found for sale.
That is no doubt true of the stock of a vast number of cor-
porations in the country, and can form no ground for equi-
table interposition. It is also alleged that most of the stock
is held by the employees of the company, and appellant is
one of its employees. We do not see that this fact requires
a court of equity to depart from the general rule, and decree
the relief sought. Appellant must be left to seek his remedy
at law, if he has one, where it is complete.
Perceiving no error in the record, the decree of the Appel-
late Court is affirmed.
Decree affirmed.
1883.] Eice et al. v. Rice et al. 199
Syllabus.
Amos Rice et al.
v.
S. F. Rice et al.
Filed at Ottawa November 20, 1883.
1. Trust — cestui que trust may pursue trust fund into property in which
it is invested. If a guardian invests the moneys of his ward in the purchase
of land, taking the title to himself, a resulting trust arises, and the ward may
follow the money into the land and hold it as trust estate, the same as was
the monej7, or he may sue upon the guardian's bond.
2. Subrogation — right of surety. A surety has a clear right, in equity,
upon paying the debt of his principal, to be substituted in the place of the
creditor as to all the securities held by the latter for the debt, and to have
the same benefit therein as the creditor would have.
3. Where a surety of a guardian is compelled to pay the ward, or his per-
sonal representative, in an action on the guardian's bond for a failure to pay
over moneys found to be due the ward, such surety, in a court of equity,
will be subrogated to the ward's right to enforce a resulting trust against the
guardian, arising out of his purchase of land with the funds of the ward, and
may have such land sold for his reimbursement.
4. Same — when the keeping alive the judgment is not essential. Where
a surety on a guardian's bond is compelled to pay a judgment rendered on
such bond for the sum due the ward, he will, in equity, be entitled to have
the benefit of a resulting trust in land which the ward had as a security for
his money used in its purchase, and for this purpose it is not material that
the judgment on the bond should not be extinguished by the payment. A
proceeding to be subrogated to the right to enforce such trust, is not one to
enforce the bond or the judgment thereon.
5. Evidence — only person affected may object to. A guardian gave
two bonds, — one of $1000, on his appointment, and another of $3000, on
obtaining a decree to sell lands. He used the proceeds of the land sold in
the purchase of other land in his own name, and made default in paying
one of his wards what was found due him. Judgments and decrees were
recovered against the guardian and all the sureties on both bonds, or against
their estates or lands devised by them, and the several sureties, or their rep-
resentatives, arranged between themselves that each should pay an equal part
of the judgment, which was done, and the parties so paying filed a bill to be
subrogated to the rights of the ward to enforce a resulting trust in the land
bought by the guardian with trust funds: Held, that on the hearing the
defendants could not urge the admission of the first bond as error, as the
200 Eice et al. v. Eice et al. [Nov.
Statement of the case.
question whether the second bond discharged the first was one material only
as between the sureties, and had been already arranged by them.
6. Same — decree as evidence against one not a party. Where a decree
is rendered against the sureties, and heirs and representatives of sureties,
upon a guardian's bond for the same amount found to be due from the
guardian to a ward by the county court, the judgment of the county court is
sufficient evidence that the decree was for a just liability of the defendants
therein as sureties of the guardian, and there is no error in admitting such
decree in evidence against the guardian and his wife and daughter, although
they were not parties to the suit in which it was rendered, in a suit by such
sureties to secure payment from the guardian of the sum paid for him. The
wife and daughter of such guardian, during his life, have no such interest as
to enable them to object to the decree as evidence.
7. Decree — as not having regard for another party. "Where sureties on
a guardian's bond, after having paid to the estate of one of the wards the
sum found due from the guardian, filed a bill in chancery to reach certain
trust property in the hands of the guardian, derived from a purchase with
the ward's moneys, out of which to reimburse themselves, the decree granting
the relief sought will not be erroneous in not also providing for the share of
another ward who is made a defendant, it not appearing that the guardian
owes such other ward anything, or that any claim was interposed in his
behalf.
8. Witness — competency. A guardian is a competent witness against
one of his wards, on a bill in chancery by his sureties against him and such
ward, seeking to reach trust funds in his hands, and be subrogated to the
equitable rights of the other ward to whom they have been compelled to pay
money as such sureties.
9. Homestead and dower — in what estate. Where a party holds the
mere naked legal title in land in trust for another, he will have no such inter-
est therein as that homestead and dower rights will attach.
Appeal from the Circuit Court of Knox county ; the Hon.
John J. Glenn, Judge, presiding.
This was a suit in chancery, brought by S. F. Eice, Wil-
liam H. Parker, (administrator of the estate of George W.
Parker, deceased,) Eliza A. Anderson, and Hans Anderson,
her husband, against Amos Kice, and Lucinda Eice, his wife,
Caroline Eice, and Fannie Eice, (now Tucker,) and others,
to reach a trust fund in the hands of Amos Eice, as guardian
of Caroline Eice and others.
1883.] Eice et al. v. Rice et at. 201
Statement of the case.
In 1863 Amos Rice was appointed guardian of Obed, Fannie
and Lydia Rice, and as such executed his bond in the sum of
$1000, with S. F. Rice and George W. Parker as sureties.
Amos Rice took possession of personal property of his wards
of the value of $350, and sold their real estate, under order
of the county court, for $1000. Upon this sale, by require-
ment of the county court, Rice gave an additional guardian's
bond in the sum of $3000, with T. G. Stewart and George
W. Parker as sureties. The guardian, Amos Rice, afterward
purchased a certain eighty acres of land in Knox county, and
took the conveyance in his own name, paying therefor $3200,
and as a part thereof paid $1000 of funds belonging to his
wards. Rice and his family occupy the land as their home-
stead. T. G. Stewart, one of the two sureties on the last bond,
died in 1870, testate, leaving to his widow, Eliza Stewart,
(now Eliza Anderson,) by will, real estate in Knox county.
George W. Parker, another surety on both the bonds, died in
1879, leaving a solvent estate, and real and personal property
in Knox county. William H. Parker was appointed admin-
istrator. Obed Rice, one of the wards, married Caroline
Rice, and in 1879 he died, leaving Caroline, his widow, and
she was appointed administratrix of his estate. Amos Rice,
as guardian, was cited to appear before the county court of
Knox county, and at the August term, 1879, he was found to
be indebted to the estate of Obed Rice in the sum of $1100.
That claim was, at the December term, 1879, of said court,
allowed against the estate of George W. Parker, and Caroline
Rice, as administratrix, recovered, in the Knox circuit court,
a judgment against S. F. and Amos Rice for $474, a portion
of said trust funds. Afterwards, Caroline Rice, as adminis-
tratrix of Obed Rice, proceeded in chancery, in the Knox cir-
cuit court, and obtained against Eliza Anderson, devisee of
the surety T. G. Stewart, and her husband, Hans Anderson,
and the land devised to Eliza Anderson, a decree for $1171.55,
which was the full amount of her claim, as administratrix,
202 Eice et at. v. Bice et at. [Nov.
Brief for the Appellants.
• — — — , ,
against Amos Bice, as guardian. The complainants paid the
full amount of this decree, and filed this bill to have sub-
jected for repayment to them of this amount, the lands afore-
said of Amos Bice, purchased in part with the trust funds.
The ward Lydia Bice had died previously. The circuit court
decreed in favor of complainants, ordering sale of an undi-
vided five-sixteenths of the land for the repayment of said
sum of $1171.55, with interest, subject to two mortgages
which had been placed upon the land. •
Messrs. Douglass & Bradford, for the appellants :
Where a judgment is rendered against principal and surety,
payment of the amount by the surety extinguishes the judg-
ment, and the surety can thereafter derive no benefit there-
from by means of subrogation. State v. Miller, 5 Blackf.
381 ; Laval v. Rowley, 17 Ind. 36 ; Br'dey v. Sugg, 1 Dev. &
Batt. Eq. (N. C.) 366.
There is no evidence tending to show that Lucinda Bice
has been guilty of fraud, or has disposed of any trust money,
and yet the decree gives the complainant a lien on the farm,
not even exempting homestead or dower.
The court erred in admitting in evidence the first bond of
$1000, as the last bond given operated to discharge the first.
International Bank v. Poppers, 105 111. 491.
Neither Amos, Lucinda nor Fannie Bice being parties to
the suit of Caroline Rice v. Eliza Anderson et at., the decree
therein was not evidence against them.
The court erred in allowing Amos Bice, the guardian, to
testify against his ward, Fannie Bice, whereby a decree was
found giving the whole estate to Caroline Bice, administratrix
of the estate of the other ward. "When does Fannie get her
share ?
There is no evidence that any claim was ever made against
Parker, or that he or S. F. Bice was bound or compelled to
pay a cent, and yet they come in as volunteers, and join with
1883.] Eice et al. v. Eice et al. 203
Brief for the Appellees.
the Andersons in paying one-third each towards the satisfac-
tion of the decree. Strangers who are not compelled to pay,
but voluntarily do pay, can not have the benefit of subro-
gation.
Messrs. McKenzie & Calkins, for the appellees :
Caroline Eice obtained judgment against S. F. and Amos
Eice for $474. Her claims were allowed against the estate
of George W. Parker, and she obtained a decree against the
devisee of T. G. Stewart, and the land devised to her, for
$1171.55. In short, every one of the bondsmen of Amos
Eice was made liable by the judgment of the court.
Upon payment to Caroline Eice, the bondsmen, sureties, or
their heirs, were entitled to be subrogated to whatever rights
the ward had against the guardian. Fogarty et al. v. Ream
et al 100 111. 379.
A surety is a favorite of the law, and every intendment is
in his favor. Pope v. Chalmers, 60 N. Y. 161; Trustees of
Schools v. Otis, 85 111. 179.
A surety on the bond of an administrator or guardian, on
payment, is subrogated to all the prior remedies of the heir
or ward. Ilhame v. Lewis, 13 Eich. (S. C.) 269 ; Smith v.
Alexander, 4 Sneed, 482.
A surety is entitled to every remedy. Willard's Eq. 111.
So where a person participating with a guardian in wasting
property of his ward rendered himself a trustee for the ward,
the sureties in the guardian's bond, upon paying the devas-
tavit, were subrogated to the rights of the ward against the
constructive trustee. Fox v. Alexander, 1 Ired. (N. C.) 340;
Talbot v. Wilkins, 31 Ark. 411; Clark v. Williams, 70 N. C.
679; CottrelVs Ajypcal, 23 Pa. St. 294; Orem v. Wrightson,
34 Am. Ed. 287.
The county court, on proof, found what was due Caroline
Eice. Fannie's share will be considered when she appears
in court asserting the same.
204 Eice et al. v. Eice et al. [Nov.
Opinion of the Court.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
Amos Eice, the guardian, having paid $1000 of his ward's
money in the purchase of the land in question, the ward might
follow the money into the land, and claim it to be trust estate,
as was the money. The ward, then, had a double recourse
for his guardian's defalcation, — either to this land, or to the
guardian's bonds. The ward's personal representative re-
sorted to the bonds, obtained judgment against the sureties,
and they paid the judgment in full. A surety has a clear
right, upon paying the debt of a principal, to be substituted
in the place of the creditor as to all the securities held by
the latter for the debt, and to have the same benefit that he
would have therein. (1 Story's Eq. Jur. sec. 327.) Under
this equitable doctrine of subrogation, the sureties, upon pay-
ment of this judgment, were entitled to stand in the place of
the personal representative of the ward, and have all the
means for satisfaction of the payment they made that such
representative had in respect to the ward's claim, and, there-
fore, right of resort to this land, as held in trust for such
purpose. Marsh v. Pike, 10 Paige, 595 ; McNeill v. Morrow,
Eich. Eq. Cases, 172 ; Rhame v. Lewis, 13 Eich. Eq. (S. C.)
269 ; CottrelVs Appeal, 23 Pa. St. 294.
The point is taken by appellant, that where a judgment is
rendered against principal and surety, payment of the judg-
ment by the surety extinguishes it, and the surety can there-
after derive no benefit therefrom by means of subrogation.
Although authority is to be found to that effect as to enforc-
ing such a judgment after it has been paid, Mr. Bispham
lays it down that it must be considered to be the generally
received doctrine that a surety who pays a debt which has
been reduced to judgment, is entitled to have the judgment
kept alive for his benefit, and to enjoy, as against the prin-
cipal debtor, exactly the same advantages which could have
1883.] Eice et al. v. Bice et al, 205
Opinion of the Court.
been claimed by the judgment creditor. (Bispham's Equity,
sec. 336, and authorities cited.) But it is not necessary in
this case to go to that length, as it is not sought here to
enforce the guardian's bond, or the judgment rendered on it,
but to have the benefit of a resulting trust in land which the
creditor had, — something entirely distinct from, and inde-
pendent of, the bond and judgment.
The objection that the decree is not supported by the evi-
dence is not well founded.
It is claimed that it was error to admit in evidence the
$1000 bond, the first bond,— that the giving of the $3000
bond fully satisfied and discharged the first. That is imma-
terial here. It would be a question entirely between sureties.
The misappropriation of money was under the last bond, the
$1000 which went into the land coming from the proceeds
of the sale of the ward's real estate. T. G. Stewart, against
whose devisee, Eliza Anderson, the judgment paid was got,
was surety on the last bond ; and further, the three sureties
on the two bonds arranged between themselves that each
should pay One-third of the judgment, as was done.
It is claimed that it was error to admit in evidence the
decree in the case of Caroline Rice v. Eliza Anderson et al. —
the one which was paid, — because neither Amos Bice nor
Lucincla or Fannie Bice was a party to that decree. The
liability of Amos Bice, as guardian, and the amount of it,
had been established in the county court, and judgment
therefor rendered against him. The decree against Eliza
Anderson, devisee of the surety Stewart, was but for the
amount of that liability thus established, and so was evidence
against Amos Bice that the decree was for a just liability as
surety of Bice. We see no interest which Lucinda, the wife
of Amos Bice, and Fannie Bice, have, entitling them to object.
Fannie Bice is said to be one of the heirs of Amos Bice. She
can not be heir of a person living.
206 Eice et at. v. Bice et at. [Nov.
Opinion of the Court.
_ f
It is said the decree gives the whole estate, only amounting
to $1000, to Caroline Eice, administratrix of the ward Obed
Eice ; that Fannie Eice is one of the two wards, and it is
asked when she gets her share. It does not appear that the
guardian is indebted to her. The county court determined
what. was due to Caroline Eice, as administratrix of Obed
Eice, and the case has proceeded without reference to Fan-
nie, except that she is made a party defendant, and merely
adopts the answer of Amos Eice, and Lucinda, his wife,
making no reference whatever to any interest of her own as
a ward. We see no reason why the decree should have any
regard for her as ward.
It is objected that Amos Eice was not a competent witness
against Fannie Eice. All the reason given is, that Fannie is
one of the heirs, and her guardian is called to testify against
her interest. We fail to see why he was not a competent
witness.
It is said, finally, the fact that the decree provides for the
sale of homestead and dower rights is enough to reverse it.
Amos Eice had no interest in the land for homestead and
dower rights to attach to. The land was trust estate, in
which he had nothing more than the naked legal title. The
decree ordered sold but an undivided five-sixteenths of the
land, — the proportional part represented by the $1000.
We find no error in the decree, and it is affirmed.
Decree affirmed.
1883.] Phenix v. Castner. 207
Syllabus.
Harmon Phenix
v.
Phebe Castner.
Filed at Ottawa November 20, 1883.
1. Witness — credibility — how to be determined. An instruction that
"no matter how prominent or respectable any one man or woman may be,
the jury ought not arbitrarily and without just cause to believe such man's or
woman's testimony as against the testimony of two or more persons testifying
differently upon the same matter," is calculated to mislead, and is erroneous.
It would doubtless be understood that in a conflict the greater number of
witnesses should control.
2. One "respectable" witness may be believed, notwithstanding any num-
ber of persons testify the other way, if from their reputation; or manner of
testifying, etc., it is doubtful whether they tell the truth.
3. Evidence — cross-examination— as to state of feeling of a witness
towards a party. As to collateral matters, in general, if gone into on cross-
examination, the party is bound by the answers of the witness, but the state
of feeling of the witness toward the adverse party is held not to be irrele-
vant. Hence it is competent to inquire, on cross-examination, if the witness
has not used expressions of animosity or revenge toward the party against
whom he bears testimony, and if the witness deny that he has, to introduce
evidence to contradict him.
4. The fact the witness states he has an unfriendly feeling toward a party,
will not stop the inquiry of the witness as to particular declarations or ex-
pressions of ill-will, resentment or revenge, and proof of them, if denied
by him. There is a wide difference between a mere feeling of unfriendli-
ness, and one of hatred with a willingness to do a personal injury, which
implies a heart disposed to the commission of crime, while a want of friendly
feeling may be consistent with the highest type of morality. A party is not
compelled to put up with the statement of a witness concerning his own
interest or personal relation to the case or the parties.
5. Instruction — as to the consideration of testimony — directing the
jury in respect thereto. It is not proper in an instruction to tell the jury
that they ought not to believe one man's testimony in preference to that of
two witnesses, "without just cause," or that they ought not, "without good
and sufficient cause," to believe one side of a witness' testimony and not the
other. It leaves each of the jury to determine what is just or good cause, to
suit himself.
208 Phenix v. Castneb. [Nov.
Statement of the case.
6. It is a serious objection to an instruction that it singles out a particular
part or piece of evidence, and holds up to the jury the consequences that
would result from perjury with reference to it.
7. On the trial of an action for slander for the speaking of words imput-
ing adultery to the plaintiff, a woman, in which a justification was set up, the
court instructed the jury, that "if any witness introduced for the purpose of
establishing adultery has testified to circumstances which may be construed
against plaintiff, and if those circumstances would tend to show that perhaps
the plaintiff committed adultery with such witness, and if such witness posi-
tively testifies that such adultery was not committed or attempted, the jury
ought not, without good and sufficient cause, believe the things such witness
testifies which may be deemed beneficial to defendant, and disbelieve all
such testimony (if any) as may be deemed favorable to plaintiff. Especially
is this true if the testimony deemed favorable to plaintiff must either be true,
or else the witness be a willful and corrupt and intentional perjurer:" Held,
that the instruction was a mere argument directed against a particular wit-
ness, and otherwise erroneous.
Appeal from the Appellate Court for the Second District ;
— heard in that court on appeal from the Circuit Court of
Stark county; the Hon. David McCulloch, Judge, presiding.
This was an action on the case, by Phebe Castner, against
Harmon Phenix, for verbal slander, in the Stark circuit court.
There was a trial at the March term, 1883, of the court,
resulting in a verdict for the plaintiff, assessing her damages
at $1500. Motion for new trial was made by the defendant,
but the court overruled the motion, and gave judgment upon
the verdict. The defendant appealed to the Appellate Court
for the Second District, and that court, at its May term,
1883, affirmed the judgment of the circuit court. This appeal
is from that judgment. Errors are assigned raising the ques-
tions discussed in the opinion.
The declaration contains three counts. In the first count
it is alleged, that "on the 27th day of June, 1882, the defend-
ant spoke, etc., of and concerning the plaintiff, etc., the fol-
lowing words : 'You (meaning plaintiff) damned dirty bitch.'
'You (meaning plaintiff) are a damned dirty bitch.' 'You
(meaning plaintiff) damned dirty whore.' 'You (meaning
1883.] . Phenix v. Castner. 209
Statement of the case.
plaintiff) are a damned dirty whore.' 'You (meaning plaintiff)
God damned dirty whore.' Meaning and intending thereby
to give out and be understood, and to charge, that this plain-
tiff was a bitch and a whore, and had been guilty of adultery. "
The second count alleges, that on the 16th day of Septem-
ber, 1881, "there was held a funeral of a little child of this
plaintiff, which said child was born in lawful wedlock, and
was the child of plaintiff's husband. The said defendant, on
the same day, and after said funeral, * * * in a certain
conversation had of and concerning the plaintiff, in the pres-
ence and hearing of divers persons, and speaking to one and
more of said persons, and which said person had just been
at the funeral of said child of this plaintiff, maliciously and
falsely spoke of and concerning the plaintiff, and referring to
this plaintiff, the false, scandalous, malicious and defamatory
words following : 'You (meaning the said person who had
been to plaintiff's child's funeral) have been down to attend
the bastard's (meaning plaintiff's child) funeral.' 'You folks
(meaning the persons addressed) have been clown to the
funeral of the bastard, (meaning plaintiff's child) have you ?'
'You (meaning said parties) have been clown to the damned
bastard's (meaning said child's) funeral ?' 'I (meaning defend-
ant) wasn't obliged to go to the damned bastard's (meaning
said child's) funeral.' 'I (meaning defendant) didn't have to
go to the damned bastard's (meaning said child's) funeral.'
'Have you (meaning said parties to whom he, defendant, was
talking,) been to the young bastard's (meaning said child's)
funeral?' 'Have you (meaning said parties to whom he,
defendant, was talking,) been to the little bastard's (meaning
said child's) funeral?' Meaning thereby to charge that the
said child of plaintiff was begotten by adulterous intercourse
on the part of this plaintiff. "
The allegations of the third count are, that "on the same
day a little child of this plaintiff, which child was duly begot-
ten in lawful wedlock, was dead, and about to be buried, and
14—108 III.
210
Phenix v. Castner.
[Nov.
Brief for the Appellant.
the said defendant maliciously intending to defame and injure
plaintiff, and not having his malice and ill-will tempered or
softened by the sorrow which the death of said child had
placed upon her heart, in a certain conversation which said
defendant then and there had and held of and concerning said
child and this plaintiff, its mother, in the presence and hearing
of, and spoken to, divers persons then and there present, and
about to attend the funeral of said child, spoke and published,
unlawfully and wickedly, of and concerning this plaintiff, the
false, malicious, scandalous and defamatory words following,
that is to say : 'You (meaning said person about to attend
said funeral) must be hard up to attend the funeral of a bas-
tard,' (meaning this plaintiff's said child.) 'Its (meaning said
child's) mother (meaning plaintiff) is a damned bitch of a
whore.' 'You (meaning said parties) must be hard up to go
to a bastard's (meaning said child's) funeral.' 'It (meaning
said child) was a bastard, and its (meaning said child's)
father was a bastard, and its (meaning said child's) mother
(meaning plaintiff) was a damned bitch.' Meaning and in-
tending to charge and be understood that this plaintiff was
unchaste, and had been guilty of adultery."
The defendant pleaded, first, not guilty ; and second, that
before the committing of the said supposed grievances in the
said several counts mentioned, etc., on, etc., at, etc., "the-
said plaintiff was a whore, and had committed adultery,"
wherefore, etc. To this there was a general replication, put-
ting in issue the allegation.
Mr. M. Shallenberger, and Mr. B. F. Thompson, for the
appellant :
It is not irrelevant to inquire of a witness, on cross-exam-
ination, whether he has not expressed feelings of hostility
against the prisoner. The like inquiry may be made in civil
cases, and if the witness denies the fact, he may be contra-
dicted by other witnesses. 1 Greenleaf on Evidence, sec.
1883.] Phenix v. Castner. 211
Brief for the Appellee.
450 ; 2 Phillips on Evidence, (5th Am. ed.) 902, 905 ; Bex v.
Yewin, 2 Campb. 638; Atwood v. Melton, 7 Conn. 66; Newton
v. Harris, 2 Seld. 345; Long v. Lambkin, 9 Cush. 361; Fol-
son v. Brown, 5 Foster, 114; Drew v. Wood, id. 363; Stark
v. People, 3 Denio, 106.
It is the right of a party to show the animus and bias of a
witness towards him, and the extent thereof. Daflin v. State,
Texas App. 184.
A witness may be contradicted as to statements made, on
cross-examination, if the evidence tends to show the temper,
disposition or conduct of the witness in relation to the cause
or the parties. State v. Roberts, 81 N. C. 605; Polk v. State,
62 Ala. 237; Mason v. State, 7 Texas App. 623; Gray v.
People, 22 Mich. 222.
The plaintiff's ninth instruction is bad, because it leaves
out the word "credible." To be good it should read, "two or
more credible persons."
The tenth instruction for plaintiff is bad, because argu-
mentative. It is a speech, —not an instruction. The last
part is especially bad. It tells the jury they must believe the
plaintiff's testimony to be absolutely true, if to believe other-
wise would make the witness liable for perjury.
Mr. James H. Miller, for the appellee :
The witness White admitted that in 1881 he was unfriendly
to appellant, that now he was unfriendly to him, and that he
had feelings against him. This could not have been made
stronger by contradicting his sworn statements, if he had
made any. Chicago, Rock Island and Pacific R. R. Co. v.
Bell, 70 111. 104; Schmidt et al. v. Sinnott, 103 id. 160.
A witness can not be cross-examined as to any distinct
collateral fact for the purpose of afterwards impeaching his
testimony. Chicago, Burlington and Quincy R. R. Co. v. Lee,
60 111. 504; 1 Starkie on Evidence, 189; 1 Greenleaf on Evi-
dence, 449.
212 Phenix v. Castner. [Nov.
Opinion of the Court.
As to the objection urged against appellee's instructions,
they are all without force,- in our judgment, when the cause
is fairly considered, as we look at it. They are all to be con-
strued as a series, in passing upon them. Toledo, Wabash
and Western Ry. Co. v. Ingraham, 77 111. 309.
Mr. Justice Scholfield delivered the opinion of the Court :
There was a conflict in the evidence with reference to the
speaking of the words in the second and third counts, and
also in that with reference to the defence of justification.
The ninth instruction, given at the instance of the plaintiff,
was as follows :
"No matter how prominent or respectable any one man or
woman may be, the jury ought not arbitrarily and without just
cause believe such man's or woman's testimony as against the
testimony of two or more persons testifying differently upon
the same matter."
We are of opinion that this was calculated to mislead. The
fact that two or more persons testify one way, and a "promi-
nent and respectable" person testifies another way, is all that
is tangible. What is "just cause," in the sense in which
the term is here used, is not denned, but is left to be deter-
mined by the members of the jury to suit themselves. One
"respectable" person may be believed, notwithstanding any
number of persons testify the other way, if, from their repu-
tation, or the matters or manner of their testimony, it is
doubtful whether they tell the truth. A jury would doubt-
less understand this as asserting that where two testify one
way, and only one the other way, the one, although "promi-
nent and respectable, " ought not to be believed as against
the two, disregarding any circumstances affecting their credi-
bility, and the letter of the instruction plainly justifies this, —
in other words, that mere numbers should control.
The tenth instruction, given at the instance of the plaintiff,
is as follows :
IS S3.] Phenix v. Castner. 213
Opinion of the Court.
"If any witness, introduced for the purpose of establishing
adultery, has testified to circumstances which may be con-
strued against plaintiff, and if those circumstances would
tend to show that perhaps the plaintiff committed adultery
with such witness, and if such witness positively testifies
that such adultery was not committed or attempted, the jury
ought not, without good and sufficient cause, believe the
things such witness testifies which may be deemed beneficial
to defendant, and disbelieve all such testimony (if any) as
may be deemed favorable to plaintiff. Especially is this true
if the testimony deemed favorable to plaintiff must either be
true, or else the witness be a willful and corrupt and inten-
tional perjurer."
This is a mere argument directed against a particular wit-
ness, and erroneous in the implied assumption that if his
evidence be false in a particular respect, he will be guilty of
willful and corrupt perjury, while if false in another respect
equally pertinent and material, he will not be guilty of willful
and corrupt perjury. Besides, the jury are left in the dark
as to what, in such connection, is meant by "good and suf-
ficient cause." It is always seriously objectionable to single
out in an instruction a particular part or piece of evidence,
and hold up to the jury" the horrible consequences that would
result from perjury with reference to it. The jury are sup-
posed to know that all witnesses testify under oath, and they
should not be morally intimidated by pictures of the results
of perjury in one part more than in another.
During the progress of the trial Frederick S. White was
called and examined as a witness on behalf of plaintiff, and
gave material evidence on her behalf. On cross-examination
he admitted that he was then unfriendly towards the defend-
ant. He was then asked if he had not, on different occa-
sions, to different persons, (giving time, place and person,)
made remarks (that were repeated in the several questions)
in regard to the defendant, showing a bitter and revengeful
2 L-l Phenix v. Castner. [Nov.
Opinion of the Court.
feeling towards him. He denied that he had made such
remarks. The counsel for the defendant, at the proper time,
called the persons named in these questions, and offered to
prove by them, respectively, that the witness had made such
remarks, but the court, on objection, refused to allow the
witnesses to be heard in that respect. As to collateral mat-
ters in general, if gone into on cross-examination, the party
is bound by the answers of the witness, but the state of feel-
ing of the witness towards the adverse party is held not to
be irrelevant, (1 Greenleaf on Evidence, sec. 450,) and hence
it is held to be competent to inquire, on cross-examination,
whether the witness has not used expressions of animosity
or revenge towards the party against whom he bears testi-
mony, and if the witness deny that he has, to introduce evi-
dence to contradict him. 2 Phillips on Evidence, (Cowen &
Hill's and Edwards' notes,) 971 ; Best on Evidence, (1st Am.
from 6th Lond. ed.) 10S1 ; Stark v. The People, 5 Denio, 10(3 ;
Newton v. Harris, 2 Seld. 345.
But counsel insist the witness having admitted that he felt
unfriendly towards the defendant, the inquiry should have
been stopped,- — that that was all that could be shown by
proof of the making of the revengeful remarks, — and in con-
firmation of this he cites Schmidt et al. v. Sinnott, 103 111.
160. That case is not at all analogous. There the witness
was asked: "Has there not been a feud or quarrel 'between
your family and Dr. Schmidt's family ?" This was disallowed
by the trial court, because the inquiry was not limited to the
feelings of the witness, and we said it might, with propriety,
have been answered, but that the ruling did no harm, because
the witness elsewhere stated fully what his feelings were
towards the party.
Between a mere feeling of unfriendliness, which was here
admitted, and a willingness to do a personal injury, of which
the offer was to make proof, there is morally a very wide
difference. The one implies, of necessity, no lawlessness,
1SS3.] Phenix v. Castner. 215
Opinion of the Court.
and may be perfectly consistent with the highest type of
morality, while the other shows a disposition of lawlessness,
and indicates a heart favorable to the commission of crime.
Suppose it could be proved that a witness had said his feel-
ings towards a party were such that he would be willing to
commit any crime that could injure him, — even perjury.
Must the inquiry be stopped in such a case by the simple
answer of the witness that he felt unfriendly towards the
party? Surely not. The inquiry would then, beyond all
question, go directly to his veracity. If, in such case, it
would not be limited to the answer of the witness, upon what
principle can that case be distinguished from this, so as to
limit the inquiry here to the answer of the witness ? We can
perceive none. Geary v. The People, 22 Mich. 222, is in point.
There the witness was asked whether she had not made cer-
tain specified declarations in regard to the defendant, and
the trial court refused to allow the question to be answered.
On error to the Supreme Court this was held to have been
improper, and ground of reversal, the court, among other
things, saying: "We think this proof should have been ad-
mitted. It is true that where a witness is cross-examined on
matters purely collateral, the cross-examiner can not inquire
of other witnesses whether the answers are truthful, because
the inquiry would open irrelevant issues. But the interest or
bias of a witness has never been regarded as irrelevant. It
goes directly to his credit, and must determine, with the jury,
how far facts depending on his evidence are to be regarded
as proven. A party can not be compelled to put up with
the statements of a witness concerning his own interest or
personal relation to the case or parties, where it becomes
necessary to know his position." We think it was error to
refuse to admit the evidence.
For the errors indicated the judgment is reversed and the
cause remanded.
Judgment reversed.
216 Dormueil et al. v. Ward et al. [Nov.
Syllabus. JBrief for the Appellants.
Alfred Dormueil et al.
v.
Henrietta Ward et al.
Filed at Ottawa November 20, 1883.
1. Ckeditor's BiJjh— jurisdiction — no judgment at law, etc. A cred-
itor's bill will not lie in any case upon a purely legal demand, where the
creditor has not first exhausted his remedy at law by obtaining a judgment
and execution, which prove unavailing by reason of fraudulent conveyances
or want of property subject to execution at law. The creditor can not pro-
ceed in equity in the first instance, unless his claim has some equitable
element, such as a trust, or the like.
2. Where an execution has been returned nulla bona upon a judgment at
law, and the creditor can show that the debtor has equitable assets which
can not be reached by execution, or that he, or others acting in concert with
him, have fraudulently placed obstructions in the way of collecting the de-
mand by execution, a case will then arise for the interposition of a court of
equity. This is a part of the ancillary jurisdiction of a court of equity.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of Cook
county; the Hon. John A. Jameson, Judge, presiding.
Messrs. G. W. & J. T. Kretzinger, for the appellants :
It appears that a judgment at law and an execution thereon
would be unavailing. The creditor is not bound first to ob-
tain these, and thus do a useless act, before seeking the aid
of a court of chancery. Steere v. Hoagland et al. 39 111. 266 ;
Nelson v. Rockwell, 14 id. 375 ; Greenway et al. v. TJiomas et al.
id. 271 ; United States v. Parrott, 1 McLean, 271 ; Heynemann
v. Danneberg, 6 Cal. 376.
There is no remedy at law against this fund in the hands of
the officer of the court, by execution on judgment, or garnish-
ment. Beddick v. Smith, 3 Scam. 452 ; Lightner v. Steinagel,
33 111. 515; Drake on Attachments, sees. 504-507.
In case of fraudulent conduct, and where fictitious debts
are charged, the party injured can come into a court of equity
1883.] Dormueil et al. v. Ward et al. 217
Brief for the Appellees. Opinion of the Court.
in the first instance. Pendleton v. Perkins, 49 Mo. 565 ; Tur-
ner v. Thomas, id. 95 ; Conro v. Port Henry Iron Co. 12 Barb.
5S; Bank v. Paine, 13 Rep. 796.
Messrs. Flower, Remy & Gregory, for the appellees :
Conceding that appellees were disposing of their property
in fraud of their creditors, appellants had no right either to
enjoin or call such transfers in question until their claim
had been reduced to a judgment. Miller et al. v. Davidson,
3 Gilm. 518; Grcenway v. Thomas, 14 111. 271.
Bill does not lie to restrain debtor from disposing of goods
pending a trial at law, so that they may be levied upon.
Phelps v. Foster, 18 111. 309; Big clow et al. v. Andress et al.
31 id. 322; Shufeldt v. Bcehm, 96 id. 560; Seripps et al. v.
King et al. 103 id. 469.
Mr. Justice Mulkey delivered the opinion of the Court :
This is an appeal from a judgment of the Appellate Court
for the First District, affirming a decree of the Superior Court
of Cook county dismissing a bill in chancery, in the nature of
a creditor's bill, for want of equity.
The bill shows that shortly after the 15th of May, 1881,
Charles and Henrietta Ward commenced business as mer-
chants in the city of Chicago, under the firm name of Ward
& Co., and continued in business until November 22, 18S2;
that the business was conducted exclusively by Frederick
Ward, the husband of Henrietta Ward ; that the complainants
are creditors of Charles and Henrietta Ward, on account of
goods sold to the firm of Ward & Co., in the sum of $2481.02,
none of which (except $617.26) was then due, and would not
be due until the months of January and February, 1SS3;
that Charles Ward had left the State and removed to Dakota ;
that he is now, and always has been, irresponsible, and has
had no property liable to execution, except the partnership
218 Dormueil et al. v. Ward et al. [Nov.
Opinion of the Court.
effects ; that appellees claim he sold out his interest in the
firm about the 24th of January, 1882, to Henrietta Ward,
for which she gave him her note of that date, for $S500 ; that
she subsequently, on the 28th of November, 1SS2, confessed
a judgment in his favor on said note, upon which an execu-
tion was issued and levied upon the stock of goods then be-
longing to her as surviving partner of the firm of Ward & Co.,
and that the same was sold under the execution ; that a large
portion of the goods thus sold had been purchased of com-
plainants ; that of the proceeds of such sale there was then
in the hands of the sheriff $2374.05, which complainants
insist should be applied to the payment of their debts ; that
said note was given without consideration, and is therefore
void. "
All of the foregoing acts are charged to have been done
fraudulently, and with the intent to defeat, hinder and delay
complainants and other creditors in the collection of their
just debts. Many other fraudulent acts and pretenses on
the part of appellees are charged in the bill, which are not
necessary to be" stated, for if a bill of this kind can be main-
tained at all on the ground that the debtor has been guilty
of fraud, aiid is seeking to defeat the collection of an honest
debt by covering up his property or placing it beyond the
reach of his creditors with a fraudulent intent, enough is
clearly shown to maintain this bill.
But it is clear, unless we are prepared to overrule a long
line of decisions extending back almost to the time of the
organization of this court, a bill of this character can not be
maintained upon the ground suggested, and this, of course,
we can not consistently do in face of the fact the rule adopted
by this court is supported by the decided weight of authority.
As was said in a recent case, this is no longer an open ques-
tion in this court, and we should have contented ourselves
with a simple reference to the previous cases on the subject,
but for the fact that counsel have insisted with so much earn-
1883.] Dormueil et al. v. Ward et al. 219
Opinion of the Court.
estness that this case comes within one of the exceptions to
the general rule which most of the cases concede to exist.
These so-called exceptions, when properly understood, are
rather nominal than real, for a bill of this character will not
lie in any case where the claim, as it is here, is a purely legal
demand. In all cases where such a bill has been maintained
the claim of the complainant has had some equitable element
in it, — such as a trust, or the like. But in the absence of
some element of this character there is a want of jurisdiction
to adjudicate upon the claim at all, and it is upon this fun-
damental doctrine the rule controlling this class of cases rests.
When, however, a judgment has been obtained, and an exe-
cution has been returned nulla bona, and it can be shown the
defendant has equitable assets which can not be reached by
execution, or that he, or others acting in concert with him,
/have fraudulently placed obstructions in the way of collect-
ing the claim by execution, a case will then be made out for
the interposition of a court of equity. The jurisdiction of
the court thus invoked is known as a part of the auxiliary
jurisdiction of a court of equity; but as a condition prece-
dent to its exercise, where the demand is purely legal, as it
is here, the claim must be reduced to a judgment, and an
execution thereon returned nulla bona. Such is the settled
law of this State, and it is supported by the general current
of authority. Bispham's Equity, 525-527; Miller et al. v.
Davidson, 3 Gilm. 518; Greenicay v. Thomas, 14 111. '271 ;
Phelps v. Foster, 18 id. 309; Blcjelow et al. v. Andress et al.
31 id. 322 ; Shufeldt v. Boehm, 96 id. 560.
In the present case the complainants are seeking to recover
a simple contract debt for goods sold and delivered. There
is no claim or pretense that the debt itself has any equitable
element in it that is not found in any other just debt, or that
will give a court of equity jurisdiction to adjudicate upon it.
It is just like any other strict legal claim. All the equitable
features of the present case consist of the fraudulent acts of
220 Ins. Co. of North America v. Garland. [June
Syllabus.
appellees in their efforts to defeat the collection of the claim
of appellants. These are not sufficient, as is fully shown by
the authorities already cited, to give a court of equity juris-
diction.
The decree in this case being in conformity with the views
here expressed, the judgment of the Appellate Court is there-
fore affirmed.
Judgment affirmed.
The Insurance Company of North America
v.
Helen N. Garland.
Filed at Ottawa June 16, 1883*
1. Insurance — waiver of condition upon notice of breach in condition.
A policy of insurance upon a dwelling house against loss by fire contained
a condition that "if the assured shall allow the building herein insured to
become vacant or unoccupied, and so remain, * * * unless the consent
of this company be indorsed hereon, this policy shall become void." The
assured transferred the property and left the premises unoccupied. Onrappli-
cation of the assignee the company indorsed its consent to the transfer of
the policy, "subject, nevertheless, to all the terms and conditions" therein
mentioned. It was shown that before such indorsement was made the agent
of the company had notice that the building was then vacant and unoccupied,
but there was no proof of an express consent that the house might remain
unoccupied. It did so remain about twenty months, when it was destroyed
by fire: Held, that the company was not liable on the policy for the loss.
2. Same — effect of breach of condition by allowing the property to
become unoccupied. A policy of insurance having such a condition does not
become absolutely void by reason of the premises becoming vacant or unoc-
cupied. Nor is the insurance company, in case of the breach of such a con-
dition, bound, at its peril, upon notice of such breach, to declare the policy
forfeited for that reason, even if it had such power. But if it' does not exer-
* Per Curiam: — A rehearing having been granted in this case we have again
carefully examined it, and find no reason to change the conclusion reached
on the former hearing. The opinion heretofore filed in the cause is approved
and re-adopted as expressive of our views on the subject. — Filed at Ottawa
January 23, 1884.
18S3.] Ins. Co. of North America v. Garland. 221
Brief for the Appellant.
cise this power while the assured is in default, and the premises are again
occupied, its right to do so ceases, and its liability on the policy again
attaches.
3. Same — effect of consent to transfer of policy. The effect of a con-
sent to a transfer of a policy of insurance by the company, subject "to all
the terms and conditions therein mentioned, " is nothing more than to place
the assignee in the same position with respect to all rights and liabilities
under it that the assured occupied before the transfer. It amounts only to
a substitution of the assignee as a party to the policy for the assured. In
other words, it is the same as a re-issue of the policy to another party upon
precisely the same terms and conditions as in the original.
4. Same — condition in policy construed. Under a condition in a policy
of insurance that "if the assured shall allow the building" insured "to become
vacant and unoccupied, and so remain," etc., the policy shall become void,
it is not sufficient, to avoid the policy, that the assured shall allow the prem-
ises to become vacant or unoccupied, but he must allow them to "remain so. "
Under such a provision, if the premises are suddenly vacated the assured is
bound to procure, without unreasonable delay, another tenant or occupant.
If he does not, the company would have the right to declare the policy for-
feited altogether, but it is not bound to do so in order to avail itself of such
condition.
5. Same — construction of words in notice. Where an agent of a pur-
chaser of insured premises applied to the agent of the insurance company to
procure its consent to a transfer of the policy, and informed the latter that
the premises were vacant, and such agent of the company informed him that
he would have to produce the policy, and at the time of the transfer told him
that "if the house was vacant he had better attend to that part. of the busi-
ness, because it would not amount to anything if the house was destroyed:"
Held, that the expression, "that part of the business," had no reference to
the transfer of the policy, but to the vacancy of the premises.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Circuit Court of Cook
county; the Hon. Murray F. Tuley, Judge, presiding.
Messrs. Miller, Lewis & Bergen, for the appellant":
Before a company can be said to have waived a condition
in its policy by recognizing its obligation after the condition
has been violated, it must appear that this recognition was
made upon full knowledge of the fact that the condition has
been violated. Allen, Safford & Co. v. Vermont Mutual Fire
Ins. Co. 12 Vt. 336; Wood on Insurance, sec. 496; Finley v.
222 Ins. Co. of North America v. Garland. [June
Brief for the Appellee.
Lycoming Ins. Co. 30 Pa. St. 313; Mershon v. National Ins.
Co. 34 Iowa, 87; Phoenix Ins. Co. v. Stevenson, 78 Ky. 156.
A waiver can not be implied unless the language or act of
the insurer is such as fairly leaves the assured to understand
that nothing further is required to be done by him. Wood
on Insurance, sec. 496, p. 834.
Where the assignee of a policy, who had purchased the
property insured, called upon the agent and informed him of
that fact, and the agent told him to bring the policy and he
would indorse consent to the transfer thereon, which the
plaintiff failed to do, it was held that there was no waiver,
because what the agent said was merely confirmatory of the
condition, and required the assignee to do precisely what the
policy required. Equitable Ins. Co. v. Cooper, 60 111. 507.
Mr. J. Blackburn Jones, for the appellee :
Although the condition, by its terms, provides that the
policy shall be "void" on a breach thereof, its legal effect is
simply to render it voidable at the election of the insurers.
If they do not elect to avoid it, neither the insured nor third
parties could treat it as void, and the insurers could waive
the forfeiture and continue the policy in force. New England
Fire and Marine Ins. Co. v. Scheltler, 38 111. 166; David v.
Hartford Ins. Co. 13 Iowa, 69 ; Keenan v. Missouri State
Mutual Ins. Co. 12 id. 126; Bigler v. New York Central Ins.
Co. 22 N. Y. 402 ; Atlantic Ins. Co. v. Goodall, 35 N. H. 328 ;
Carpenter v. Prov. Wash. Ins. Co. 16 Pet. 509; Coursen v.
Pennsylvania Ins. Co. 46 Pa. St. 323 ; Frost v. Saratoga Ins.
Co. 5 Denio, 154; Clark v. Jones, 1 id. 516; Cartwright v.
Gardener, 5 Cush. 2S1 ; Warner v. Peoria Ins. Co. 14 Wis.
323 ; Miner v. Phoenix Ins. Co. 27 id. 699 ; Commercial Ins.
Co. v. Spankneble, 52 111. 53; Vicle v. Germania Ins. Co. 26
Iowa, 53; Insurance Co. v. Stockbower, 26 Pa. St. 199.
Waiver of a condition need not be in writing. Viele v.
Germania Ins. Co. 26 Iowa, 53 ; 1 Greenleaf on Evidence,
1883.] Ins. Co. of North America r. Garland. 223
Opinion of the Court.
sees. 302-304; 2 Phillips on Evidence, (Cowan, Hill & Ed-
ward's notes,) 692, note, 505; Fleming v. Gilbert, 3 Johns.
528; Merrill v. Ithaca and Oswego R.R. Co. 16 Wend. 586.
Any course of dealing whereby the assured was led to
believe that the condition was dispensed with or forfeiture
waived, will be sufficient to preclude the setting up of the
breaches of the condition as a defence. Viele v. Germania
Ins. Co. 26 Iowa, 53 ; North Berwick Co. v. Insurance Co. 52
Maine, 336; Franklin v. Atlantic Fire Ins. Co. 42 id. 456
Columbia Ins. Co. v. Cooper, 50 Pa. St. 331 ; Lycoming Ins
Co. v. Stockholder, 26 id. 199; Wing v. Harvey, 27 Eng. L
& Eq. 140; Frost v. Saratoga Mutual Ins. Co. 5 Denio, 154
Ames v. New York Union Ins. Co. 26 N. Y. 263; Liddle v
Market Fire Ins. Co. 28 id. 184; New York Ins. Co. v. Na-
tional Protection Ins. Co. 20 Barb. 468 ; Bcehen v. Williamsburg
Ins. Co. 35 N. Y. 131; Goit v. National Protection Ins. Co.
25 Barb. 189; Commercial Ins. Co. v. Spankneble, 52 111. 53.
Mr. Justice Mulkey delivered the opinion of the Court :
This is an appeal from a judgment of the Appellate Court
affirming a decree of the circuit court of Cook county, in
favor of Helen L. Garland, the appellee, and against the
Insurance Company of North America, the appellant, for the
sum of $3000, the amount of a loss by fire, under a policy
of insurance issued by the company to Maria G. McConnell
on her dwelling house, on the 23d day of November, 1876,
and by her assigned, with the consent of the company, to
appellee, less the sum of $1746, the amount of a certain
mortgage upon the insured premises, then held by the com-
pany.
After the issuing of the policy, and but a few days before
the 23d of January, 1S78, Mrs. McConnell, the assured, sold
and conveyed the premises to Mrs. Garland, the appellee,
and thereupon moved out, leaving them vacant and unoccu-
22tt Ins. Co. of North America v. Garland. [June
Opinion of the Court.
pied, in which condition they so remained until the time of
their destruction by fire, on the 25th of September, 1879,
being a period of some twenty months. The policy, among
others, contained this provision : "And if the assured shall
allow the building herein insured to become vacant or un-
occupied, and so remain, * * * unless the consent of
this company be indorsed hereon, this policy shall become
void." On the 23d of January, 1878, and but a short time
after the sale and transfer of the property to appellee, her
husband, John C. Garland, called at the company's office for
the purpose of obtaining the company's assent to the transfer
of the policy, which, after some little delay, by reason of the
policy not being present, was indorsed thereon in these words :
"The property hereby insured having been purchased by
Helen L. Garland, the Insurance Company of North America
consents that the interest of Maria G. McConnell in the within
policy may be assigned to said purchaser, subject, neverthe-
less, to all the terms and conditions therein mentioned and
referred t0- C. H. Case, Agent."
Garland's account of what occurred at the company's office
is as follows : "After the purchase of this property from
McConnell, and after the McConnells had moved out of the
house, I called at the office of Mr. Case, agent of this com-
pany, whose name is signed to the policy, at No. 120 La Salle
street, to have the insurance transferred from Mrs. McConnell
to Mrs. Garland, and the clerk at the desk said that I would
be obliged to bring the policy before the insurance could be
transferred on their books. I remarked to the clerk that ij;
was late in the afternoon, and I had just got knowledge that
the house was vacant, and desired to have the transfer made.
The clerk remarked that they could put it on their book, —
put the transfer on their books, — but it would not be legal
without I had the policy with Mrs. McConnell's signature
attached, and if the house was vacant I had better attend
1S83.] Ins. Co. of North America v. Garland. 225
Opinion of the Court.
to that part of the business, because it would not amount to
anything if the house was destroyed, — they would not be liable
for any loss. I then went out to find McConnell, and found
him. Got his wife's signature to the assignment on the back
of the policy. It was signed by Mr. McConnell, who s,aid he
was his-wife's agent. I then *took the policy back to Mr.
Case's office, and they wrote on it their transfer. The policy
was then taken back in where Mr. Case was sitting, and signed
by him, and brought and handed to me." In answer to the
question, "Now state again precisely what you said, if any-
thing, with reference to the property being vacant?" he fur-
ther said : "I told this clerk that I wanted the transfer put
on the books that day, because the property was vacant, and
it had just come to my knowledge that the McConnells had
moved out of it and moved into the city. "
Upon this state of facts it is claimed by appellee that the
company having assented to the transfer of the policy in the
manner stated, with notice that the insured premises were at
the time of such transfer vacant and unoccupied, was in law
a waiver of the condition which declares the policy void upon
the happening of such contingency, — and so the Appellate
Court held. We do not think the evidence, or a proper con-
struction of that clause of the policy, warrants the conclusion
reached. We see nothing in Garland's statement of what
occurred at the company's office that would justify the infer-
ence that the company intended a waiver of that condition
in the policy. There was certainly nothing said by any one
present to warrant that conclusion, — so that if the position
can be maintained at all, it must be solely on the ground
that the consent of the company, having notice of the fact
the property was at the time unoccupied, is of itself, in law,
a waiver of the condition. We are aware of no authority
sustaining this view, and certainly none has been cited going
that length. We do not understand that a policy having a
condition in it like the one under consideration becomes ab-
15 -108 III.
226 Ins. Co. of North America v. Garland. [June
Opinion of the Court.
solutely void by reason of the premises becoming vacant or
unoccupied. Nor do we understand that in case of a breach
of the condition of the policy in this respect the company is
bound, at its peril, upon notice of such breach, to declare the
policy forfeited for that reason, even conceding it has the
power to do so, of which it* is unnecessary now to express
any opinion. And it is well settled if the company should
not exercise this power while the assured is in default, and
the premises should again become occupied, its right to do
so would cease, and its liability on the policy would again
attach. Schmidt v. Peoria Marine and Fire Ins. Co. 41 111.
295 ; Insurance Company of North America v. McDowell, 50
id. 120; Westchester Fire Ins. Co. v. Foster, 90 id. 121.
Now, the object of the company in assenting to the transfer
of the interest of the assured in the policy to the purchaser
was clearly nothing more than to place the latter in the same
position, with respect to all rights and liabilities under it, that
the assured herself occupied before such transfer. Suppose
Mrs. McDonnell had simply vacated the property without
selling it or assigning the policy, and it had remained vacant
until the loss by fire in the same way it did, and this action
had been brought by her instead of Mrs. Garland, and the
company had invoked the breach of this condition in the
policy as a defence, would it have been any answer to have
replied the company knew the premises were vacant and
unoccupied, and had declared no forfeiture of the policy ?
Surely not. And yet, on principle, we can see no difference in
this case and the one supposed, if, as we have already seen,
the transfer of the policy with the company's consent is a
mere substitution of appellee as a party to the policy for Mrs.
McConnell. Upon such change of parties, her relation to the
policy, the company, and the subject matter of the contract,
became precisely the same as that of Mrs. McConnell before
the substitution. It was, in effect, re-issuing the policy to
another party upon the same terms and conditions it had
18S3.] Ins. Co. of North America v. Garland. 227
Opinion of the Court.
been issued before. Suppose this had been an original policy,
issued to appellee in the first instance, under the same cir-
cumstances, how would the case stand ? To say the delivery
of the policy under such circumstances would be a waiver of
the condition altogether, would be to not only disregard the
manifest intention of the contracting parties, but would be
clearly doing violence to an express provision of the contract
itself. We have no doubt in such case the condition would
remain in full force to the same extent as other provisions
in the contract, and that in order to secure the benefits of
the policy the assured would be bound to see the premises
did not "remain" vacant or unoccupied. In such a case we
have no doubt the company would have a clear right to insist
on the performance of the condition, and until that was done
its liability under the policy would not attach. On the other
hand, whenever the terms of the policy in this respect were
complied with, the company's liability would at once begin.
The case in hand does not, in our opinion, differ in prin-
ciple from the one supposed. • The precise language of the
policy affecting this question should be particularly noted.
The condition is not that the policy shall become null and
void if the assured shall allow the building to become vacant
or unoccupied. That is not sufficient. By the very terms
of the policy the assured must go a step further. She must
not only allow the building to become vacant or unoccupied,
but, in the language of the policy, she must also allow it to
"remain so." It is clear that under a provision of this kind,
if the premises were to be suddenly vacated the assured
would be bound to procure without delay another tenant or
occupant, for until that was clone his or her rights under the
policy would be suspended, though the policy for that reason
would not become void. On the contrary, as soon as the
premises were re-occupied the company's liability would again
attach. It may be, for any unreasonable delay by the assured
in re-occupying the property the company would have the
228 Ins. Co. of North America v. Garland. [June
Opinion of the Court.
right to declare the policy forfeited altogether, but it is not
bound to do so in order to avail itself of this condition. In
the present case there was a wanton disregard of the condi-
tion in question altogether, and we think justice to the com-
pany demands that its rights under the policy should not be
sacrificed by a lax or latitudinous construction, which would
do violence to the very terms of the company's consent to
the transfer. By those terms it agreed that Mrs. McConnell's
interest in the policy might be' assigned to appellee, "subject,
nevertheless, to all the terms and conditions therein mentioned
Mnd referred to." And yet we are asked to hold, in the face
of this express stipulation to the contrary, that the company
thereby waived this condition in the policy. We can not
give our assent to any such construction.
So far as this case may be supposed to depend upon
whether the company had notice of the fact the premises
were vacant and unoccupied at the time of the transfer, the
evidence is by no means satisfactory or conclusive, yet in the
view we take of the question it is not important to discuss
the evidence relating to it. Conceding it to be sufficiently
established, it distinctly appears, as we understand the testi-
mony, the company, at the very time of receiving such notice,
informed the appellee's husband, who was then acting as her
agent, that the company would not be liable for any loss
so long as the premises remained vacant and unoccupied.
Garland himself swears he was informed, at the time of the
transfer, that if the house was vacant he "had better attend
to that part of the business, because it would not amount to
anything if the house was destroyed, — they would not be
liable for any loss."
It is claimed, however, the expression, "that part of the
business, " has reference to the transfer of the policy. But
that would certainly, in the connection in which it occurs,
be a very forced construction. We think the plain common
sense of the thing requires this expression to be referred to
1SS3.] Ins. Co. of North America v. Garland. 229
Mr. Justice Craig, dissenting.
the vacancy of the premises, and not. the assignment of the
policy. There was no occasion to admonish Garland to
quicken his steps in getting the policy assigned. He was
already there, in the company's office, for that purpose, and
doing all that one reasonably could do to accomplish that
object. But not so with respect to the property being occu-
pied. That was liable to be overlooked, and some time would
necessarily be required in procuring an occupant, hence the
admonition.
The judgment of the Appellate Court is reversed, and the
cause remanded, with directions to reverse the decree of the.
circuit court, and remand the cause to that court for further
proceedings in conformity with the views here expressed.
Judgment reversed.
Mr. Justice Craig, dissenting:
. I do not concur with a majority of the court in the deci-
sion of this case, and I have concluded to give my reasons
for dissenting.
On the 23d day of November, 1876, the Insurance Com-
pany of North America issued to Maria G. McConnell a
policy of insurance on her dwelling house in Winnetka, for
$3000, to be in force from its date until February IS, 18S0.
On the 25th day of September, 1879, the building was burned.
The only question involved in this record is, whether the
policy was in force at the time the building was destroyed.
The policy contained a provision that if the property was
sold to a third party the policy might be assigned to the
purchaser, with the written consent of the company. The
property was sold to Helen L. Garland, and the company,
by C. H. Case, its agent, on the 23d day of January, 1878,
agreed to the assignment, in writing, which was indorsed on
the policy, as follows : "The property hereby insured having
been purchased by Helen L. Garland, the Insurance Com-
pany of North America consents that the interest of Maria
230 Ins. Co. of North America v. Garland. ' [June
Mr. Justice Ckaig, dissenting.
G. McConnell in the within policy may be assigned to said
purchaser, subject, nevertheless, to all the terms and condi-
tions therein mentioned and referred to."
The policy contained this provision : "If, during the con-
tinuance of this insurance, the risk shall be increased, by
any means whatever, with the knowledge of the assured, and
the assured shall neglect to notify the company thereof,
* * * and if the assured shall allow the building herein
insured to become vacant or unoccupied, and so remain,
* * * in each and every such case, unless the consent of
this company be indorsed hereon, this policy shall be null
and void."
It appears, from the evidence, that a short time before
the assignment of the policy, the McConnells, who had been
occupying the property, moved out and left the house vacant,
and it remained vacant until it was destroyed by fire. On
behalf of the company it is claimed, that as the property
became vacant and unoccupied, and so remained until it
was destroyed, it is not liable for the loss ; while on the other
hand it is claimed, that the company was notified on the 23d
clay of January, 1878, (before the policy was assigned,) that
the property was vacant, and that after receiving such notice
the company assented to the assignment of the policy, and
that such assent was in effect a re-insurance of the house as
vacant property, and hence the policy was in force at the
time the property was destroyed.
Whether the company had notice of the fact that the house
was vacant when it assented to the assignment of the policy,
is a question of fact upon which the evidence is not entirely
harmonious. Upon this point John C. Garland in substance
testified: "I know that the Insurance Company of North
America, complainant in this case, had notice that the house
was vacant before it burned. After the purchase of this prop-
erty from McConnell, and after the McConnells had moved
out of the house, I called at the office of Mr. Case, agent of
1883.] Ins. Co. of North America v. Garland. 231
Mr. Justice Craig, dissenting.
this company, whose name is signed to the policy, at No. 120
La Salle street, to have the insurance transferred from Mrs.
McConnell to Mrs. Garland, and the clerk at the desk said
that I would be obliged to bring the policy before the insur-
ance could be transferred on their books. I remarked, to the
clerk that it was late in the afternoon, and I had just got
knowledge that the house was vacant, and desired to have
the transfer made. The clerk remarked that they could put
it on their book, — put the transfer on their books, — but it
would not be legal without I had the policy with Mrs. McCon-
nell's signature attached, and if the house was vacant I had
better attend to that part of the business, because it would
not amount to anything if the house was destroyed, — they
would not be liable for any loss. I then went out to find
McConnell, and found him. Got his wife's signature to the
assignment on the back of the policy. It was signed by Mr.
McConnell, who said he was his wife's agent. I then took
the policy back to Mr. Case's office, and they wrote on it
their transfer. The policy was then taken back in where
Mr. Case was sitting, and signed by him, and brought and
handed to me." In answer to a further question he said,
before the indorsement was made by Mr. Case he told the
clerk that he wanted the transfer put on the books that day
because the property was vacant, and it had just come to
his knowledge that the McConnells had moved out of it and
moved into the city. At the time of this occurrence three men
were at work in the office of the company, — Case, the agent,
Graves, a book-keeper, and Robinson, a clerk in the office ;
but these men have no recollection whatever of the transac-
tion. Case says he had no notice that the building was
vacant. Graves does not remember that Garland ever called
at the office. Robinson wrote the indorsement on the policy,
which was signed by Case, and he says nothing was said at
the time about the building being vacant, that he remembers.
But this negative evidence can not overcome the clear and
232 Ins. Co. of North America v. Garland. [June
Mr. Justice Craig, dissenting
concise statement of the witness Garland, who seems to be
positive in regard to what was said and clone, and if his evi-
dence is true, (and so far as appears from anything in the
record there is nothing to overcome or impeach it,) the com-
pany, at the time it assented to the assignment of the policy,
had notice that the building was vacant.
If, then, the company had notice that the building was
vacant at the time it consented to the assignment of the
policy, what construction is to be placed upon the contract
of insurance after the assignment, existing between the com-
pany and the assignee, Helen L. Garland?
In Fogg v. Middlesex Mutual Fire Ins. Co. 10 Cush. 337,
the effect of an assent to an assignment by an insurance
company is stated by the court in the following language :
"As a policy of insurance is not a negotiable instrument, it
can not be legally transferred so as to enable the assignee to
maintain a suit in his own name without the assent of the
other party. But in general, at the common law, where one
party assigns all his right and interest in the contract, and
the assignee gives notice to the other party to the contract,
and he agrees to it, this constitutes a new contract between
one of the original parties and the assignee of the other, the
terms of which are regulated and fixed by those of the origi-
nal contract."
In Wilson v. Hill, 3 Met. 66, a like question arose, and
the court said : "If the assured has wholly parted with his
interest before they (the buildings insured) are burnt, and
they are afterwards burnt, the underwriter incurs no obliga-
tion to pay anybody. The contract was to indemnify the
assured, and if he has sustained no damage the contract is
not broken. If, indeed, on a transfer of the estate, the vendor
assigns his policy to the purchaser, and this is made known
to the insurer, and is assented to by him, it constitutes a new
and original promise to the assignee to indemnify him in like
manner whilst he retains an interest in the estate ; and the
1SS3.] Ins. Co. op North America v. Garland. 233
Mr. Justice Craig, dissenting.
exemption of the insurer from further liability to the vendor,
and the premium paid for insurance for a term not yet ex-
pired, are a good consideration for such promise, and con-
stitute a new and valid contract between the insurer and the
assignee."
If the doctrine of these cases is sound, which I believe it
to be, the written assent of the insurance company to the
assignment of the policy created a new contract of insurance
between the company and the assignee of the policy, — Helen
L. Garland. In legal effect the contract of insurance was
the same as if Mrs. Garland had surrendered the old policy,
and the company had issued to her, and in her name, a new
one for the unexpired term the old policy had to run.
If I am correct in this view, the only remaining question
to be determined is, whether an insurance company which
issues a policy on vacant property, knowing the fact that the
property is vacant, can, in case of loss, defeat a recovery on
the policy on the ground that the policy contains a provision
that it shall be void in case the property becomes vacant
during the term for which the property is insured.
A similar question arose on a policy of insurance in Com-
mercial Ins. Co. v. Spankneble, 52 111. 60, and in that case it
is said: "As to the objection that the premises were unoc-
cupied when the fire occurred, it is a sufficient answer to say
that the brewery was in the same condition when the fire
occurred that it was when the policy was issued, and the
agent of the company was informed of its condition when he
issued the policy. The company took the premium knowing
the condition of the premises, and their condition being the
same when destroyed by the fire, they should not be permitted
to escape liability on that ground. The premises were no
more vacant or unoccupied at the time of the fire than when
the insurance was effected." See, also, Williamsburg City
Fire Ins. Co. v. Cary, 83 111. 454, where a similar doctrine
is announced.
234 Ins. Co. of North America v. Garland. [June
Mr. Justice Craig, dissenting.
In Georgia Home Ins. Co. v. Kinnet, Aclmx. 28 Gratt. 88,
the policy upon which the action was brought contained a
clause that it should be vitiated if the premises became
vacant, and the court, in deciding the question, held : "If,
at the time the agent of the company received the premium
of insurance and delivered the policy, he had knowledge of
the vacation of the property, and did not then avoid the
policy, but treated it as valid and subsisting, such conduct
of the agent was a waiver of the condition, and a breach of
it could not be relied on by the defendant to defeat the plain-
tiff's recovery."
In Williams v. Niagara Fire Ins. Co. 50 Iowa, 581, the
policy contained a similar condition, and it is there said :
"The company, with full knowledge that the house was unoc-
cupied, and would be for a time, issues the policy and receives
the premium, and then, after a loss occurs, insists that it is
not bound, and the policy never had a legal existence, because
said house was vacant. Having issued the policy, taken the
premium, and thereby induced the plaintiff to believe she
was insured, the defendant is estopped from alleging or prov-
ing the policy never had a legal existence. By issuing the
policy the defendant waived the conditions as to the occupa-
tion of the building."
In Aurora Fire Ins. Co. v. Kranich, 36 Mich. 289, it was
held that a condition similar to the one under consideration
had no application to a case where buildings insured were
vacant at the time the policy issued.
The Supreme Court of Maine, in North Berwick County v.
New England Fire and Marine Ins. Co. 52 Maine, 336, hold
that a renewal of a policy, with knowledge of the existence
of facts which would authorize the insurer to declare a for-
feiture, would be regarded a waiver.
But it is unnecessary to multiply authorities on the ques-
tion, as we regard it well settled by authority that the insurer
can not invoke the aid of a proviso like the one in question
18S3.] Ins. Co. of North America v. Garland. 235
. Mr. Justice Craig, dissenting.
to defeat a recovery, where the policy was issued with knowl-
edge at the time that the property was vacant. When the
insurance company was notified by Garland that the house
was vacant, if it did not desire or intend to be bound as an
insurer of vacant property it had the right, and good faith
required, that it should refuse to consent to the assignment,
and thus the contract of insurance might have terminated ;
but it did not pursue this course, but chose to consent to the
assignment of the policy, and thus entered into a new con-
tract of insurance with the assignee. Having done this with
knowledge that the property was vacant, justice and fair
dealing will not now permit the company to escape liability
by claiming that the contract made by it was, at the time,
worthless and void.
It is claimed by appellant that appellee did not, in her
answer or cross-bill, rely upon the point that the assent of
the company to the assignment of the policy was a waiver of
the condition against vacancy, and hence "the case made by
the decree is not the case made by the answer and cross-bill. "
It is set up, both in the answer and the cross-bill, that the
building was vacant, and that the company had full knowl-
edge that it was vacant, and this is relied upon as a waiver
by the company of the right to insist upon the proviso named
in the policy. It may be, and perhaps is, true, that the
ground upon which appellee relied to recover on the policy
might have been more accurately stated ; still, it was sub-
stantially stated, both in the answer to the bill and also in
the cross-bill, and that was all that could be required.
In conclusion, after a careful consideration of the case I
am well satisfied that the judgment of the Appellate Court
was correct, and in my judgment it ought to be affirmed.
236 Walker v. Doane. [Nov.
Syllabus.
Martha A. Walker
v.
John W. Doane.
Filed at Ottawa November 20, 1883.
1. Set-off — in equity — rents and profits against dower — insolvency.
Dower was allowed a widow iu the homestead premises at $350 a year, pay-
able quarterly, on her petition for dower in these and other lands, the decree
not preserving her homestead estate. The homestead property was, under a
decree of court, sold and conveyed by the administrator of the estate of her
deceased husband to a purchaser, subject only to such lien thereon for dower,
and the widow refused the possession of the homestead to the purchaser, its
rental value being at least double the yearly dower assessed to her, which
rents she received, but suffered the taxes to accumulate on the property, and
it to go to sale. The widow was insolvent: Held, on bill by the purchaser
at the administrator's sale for possession and for an equitable set-off, that a
decree charging the widow with the value of the use of the premises from the
date of the administrator's deed until surrendered to the purchaser, and for
taxes paid out by the purchaser, except those which were a lien on the land
at the administrator's sale, and providing that if not paid within a certain
time the value of the use of the premises and the taxes paid should be set off
against the dower due the widow on the same premises, discharging them
from the lien for its payment as far as the amount found against the widow
might go, was equitable and proper.
2. Same — equitable. Where there is anything peculiar in a case, so as
to render it impossible for exact justice to be done by a court of law under
the statute, a court of chancery will afford relief through the medium of an
equitable set-off. The insolvency of the defendant holding an incumbrance
for a yearly allowance in lieu of dower on property bought by the complain-
ant, who is wrongfully kept out of possession by the defendant, affords juris-
diction to a court of equity to apply complainant's damages in discharge of
the incumbrance pro tanto.
3. Dower — poicer of court to decide widow's right to occupy homestead
until dower is assigned in all the lands. Where a widow files her bill or
petition for the assignment of her dower in all the lands left by her husband,
the court is thereby invested with jurisdiction to pass upon whatever rights
she may have in the homestead property, including the right to occupy it
until her dower is assigned in allthe lands.
4. Same — effect of decree on widow's future right to occupy the home-
stead. A decree on the bill of a widow giving her dower in the home place
and in some other tracts, without providing for her future occupancy of the
18S3.] Walker v. Doane. 237
Syllabus.
home property until dower is assigned in all the lands of which her husband
died seized, is conclusive against her, and she can not be heard to insist upon
any rights with respect to the property not secured by the decree itself.
5. Same— severance by reversal of decree as to part of lands. Where
a decree entered in a cause giving a widow dower in each of several tracts of
land is, on appeal, reversed as to one tract and affirmed as to the other lands,
this will amount to such a severance that the part of the decree which is
affirmed, and the dower allotted thereby, will no longer depend upon or be
affected by the decree to be rendered as to the other tracts.
6. Evidence — records of court — party not bound to introduce anymore
than relates to the issue. A party, for the purpose of proving the contents
of a petition, decree, etc., in a proceeding by a widow for dower, instead of
producing a certified copy of the entire record produced the originals, one at
a time, and offered them in evidence, to which objection was' made, and over-
ruled: Held, that the evidence was properly admitted, it being unnecessary
to introduce any more of the record than affected the question at issue. The
other party might, in such case, offer any part important to his or her interest.
7. Same— relevancy— facts not affecting parlies' interests or rights.
The reversal of the part of a decree affecting one piece of property and the
affirmance of the part affecting another tract which is the principal subject
of the litigation, creates such a severance of the former unity of the decree
and proceedings as that thereafter those relying on the one part will not be
chargeable with the consequences resulting from the other part, and there-
fore in a contest between the dowress and a purchaser at administrator's sale
of the tract as to which the decree of dower was affirmed, proof that such
purchaser is in possession of the other tract is irrelevant and immaterial.
8. Res judicata — matters decided on first appeal conclusive on second
appeal. A second appeal in the same case, where the decision of reversal
and remandment on the first appeal covers the merits of the controversy in
all its bearings, brings before this court only the subsequent proceedings had
after the mandate of this court has been sent down.
9. Administrator's sale — subject to proceeding for dower. During
the pendency of a widow's petition for dower in various pieces of land, the
administrator of her deceased husband's estate applied for an order to sell
one of the tracts or lots to pay debts, making the widow a party. She
answered, setting up no defence or claim except that which she was seeking
to enforce through her petition for dower, and the administrator's sale was
made subject to her right of dower: Held, that the purchaser at the admin-
istrator's sale became simply bound to abide by the decree giving her dower,
whatever it might be.
10. Appeal— only suspends judgment or decree— does not vacate. An
appeal from a decree does not vacate the same or destroy its lien, but merely
suspends its operation or execution, and where the decree is affirmed it
stands for all purposes just as if no appeal had been taken.
238 Walker v. Doane. [Nov.
Brief for the Appellant.
11. Homestead — ivhen assignment of dower is a release of. If dower
is allotted out of other lands beside the homestead, the acceptance of such
allotment is a waiver and release of the estate of homestead of the person
entitled to dower, and his or her children, unless it be otherwise ordered by
the court. Dower assigned on a party's own petition must be regarded as
accepted.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of Cook
county ; the Hon. George Gardner, Judge, presiding.
Messrs. Isham, Lincoln, Burry & Eyerson, for the appel-
lant :
Complainant has a complete remedy at law by an action
of ejectment. The dower decree did not impliedly cut off
the right of quarantine. For the purpose of showing the
effect of a failure in a decree to protect the right, we refer to
Asher v. Mitchell, 92 111. 481 ; Leopold v. Krause, 95 id. 441 ;
Suitterlin v. Connecticut Mutual Life Ins. Co. 90 id. 484. See,
also, Toledo, Peoria and Warsaw Ry. Co. v. Curtenius, 65
111. 120.
But if, as appellee contends, the widow's dower has been
assigned, or her quarantine has expired, the heir or his
assigns may maintain ejectment against her, and it is the
proper remedy. 2 Scribner on Dower, 31 ; Jackson v, O'Don-
oghj, 7 Johns. 247.
Courts of chancery in this State have no jurisdiction in
suits to recover possession of land held adversely. Such
relief is only granted when incidental to the main object of
the bill. (Green v. Spring, 43 111. 280.) Neither is there
any matter of account involved in this case such as will call
for interference by a court of chancery. There are no mutual
or cross-accounts between the parties. The account must be
very complicated before chancery will entertain such juris-
diction. Craig v. McKinneij, 72 111. 312.
If the decree in this case is allowed to stand, then certainly
the widow is deprived of a homestead right which even the
1883.] Walker v. Doane. 239
Brief for the Appellee. Opinion of the Court.
second opinion filed intimates can not be lost by any of the
circumstances which are taken as true in that opinion, and
which are there held to be sufficient to waive and defeat
quarantine. Homestead and dower rights may both exist in
the same tract of land. (Walsh v. Reis, 50 111. 477 ; Peyton
v. Jeffries, id. 148.) They ought, therefore, both to be set
off to the appellee, before possession is taken from her.
Montague v. Selb, 106 111. 49.
Mr. W. H. Moore, and Messrs. Paddock & Aldis, for the
appellee :
This court having settled the law upon the facts alleged
in the bill and discussed in the case cited below, the only
proposition that need be maintained by the appellee is, that
the facts proven at the hearing support all, or a sufficient
part, of the material allegations of the bill, and justify the
decree complained of. We submit that such facts were so
proven, and that they so sustain the decree. Doane v.
Walker, 101 111. 628.
It was held by this court that the widow was concluded by
the decree of dower, and that it impliedly cut off her rights
in the premises not affirmatively preserved in the decree,
and that Doane was right in relying upon it. A decree not
reversed, so far as the rights of purchasers under it are con-
cerned, must be taken, in law to be in force. It is true that
the right to final process on a decree may be temporarily
suspended by an appeal. Where, on* the appeal, the decree
is affirmed, the rights of all parties stand as if no appeal had
been taken.
Various other points were made upon the facts of the case,
and in reply to appellant's counsel.
Mr. Justice Scholfield delivered the opinion of the Court :
This case was before us at our March term, 1882, on the
appeal of the complainant (the present appellee) from a judg-
240 Walker v. Doane. [Nov.
Opinion of the Court.
inent of the Appellate Court for the First District, affirming
the decree of the Superior Court of Cook county. The ques-
tions then considered arose upon demurrer to the bill, and our
judgment reversed, that of the Appellate Court. Eeference
may be made to the report of the case as published, under
the title of Doane v. Walker, 101 111. 628, for a full statement
of the allegations of the bill and the questions discussed and
decided at that time.
After the cause was remanded to the Superior Court of
Cook county, the defendant in the bill (the present appellant)
answered the bill, putting in issue all its material allegations.
The cause came on thereafter to a hearing, and the Superior
Court, by its decree then made, found all the material allega-
tions of complainant's bill true, and that the equities therein
are with the complainant ; that defendant has, without right,
since the date of the administrator's deed, withheld from
complainant the possession of the Ellis avenue property ; that
complainant, by virtue of the decrees in the dower proceed-
ing, was entitled to the possession of the premises, as against
the defendant, since the date of the deed, and held them in
fee simple, except as to the dower allowance of $350 per
annum, payable quarterly, as provided by the decree ; that
the dower decree is still in force and unreversed as to the
Ellis avenue property ; that defendant is insolvent, and has
permitted waste on the premises, as alleged in the bill, and
failed to pay taxes, and therefore ordered that defendant sur-
render possession of the premises to complainant, and in de-
fault of such surrender that complainant be entitled to a writ
of assistance upon application to the court, and such further
order as may be required to put him in possession. The
court thereby further found that complainant was entitled to
an accounting for occupancy, taxes and waste, and thereupon
decreed that the amount so to be found due be set off against
the dower allowance to make his title clear from the cloud
of arrears of dower under the dower decree, and that it be
1883.] Walker v. Doane. 241
Opinion of the Court.
referred to a master in chancery to take an account between
the parties, giving credit to the defendant at the rate of $350
per year from October 15, 1878, (the date of the administra-
tor's deed,) and to charge against defendant the value of the
use of the premises since said October 15, 1878, and until
they are surrendered to complainant, and all taxes and assess-
ments accruing since the date of the administrator's deed are
paid by complainant, charging against defendant the propor-
tion equitably chargeable to her ; and also that the master
report all damages by reason of waste.
At a subsequent day the master made his report in writing
to the court. In it he reports, in substance, thus : He finds
that complainant has paid out since the date of the adminis-
trator's deed, for taxes, the sum of $3517.78, of which he
charges the defendant with the payment. He therein charges
the defendant with the payment of $1050 as the yearly value
of the use of the premises, and he adopts this estimate because
it is the amount fixed by the verdict of the jury in the dower
proceedings. He does not charge the defendant with any
special taxes and assessments paid by complainant, because
the work of improvement which such taxes and assessments
were levied and collected to pay for, have contributed to the
permanent advantage of the property. He does not charge
the defendant with the taxes of 1878, because they were a
lien on the property when the complainant purchased. He
does not charge the defendant with waste, because, in his
opinion, the evidence fails to sustain that charge. Excep-
tions to this report were filed by both parties before the mas-
ter, and they were all overruled by him. They were renewed
in the Superior Court, and all — except one by the complain-
ant, which is of no importance in the consideration of the
questions discussed in the argument of counsel, — overruled,
and the court thereupon decreed, in accordance with the
report of the master, as approved, that the defendant pay to
the complainant $4314.39 ; that in default of such payment
16—108 III.
242 Walker v. Doane. [Nov.
Opinion of the Court.
said sum stand and be set off as to the quarterly allowance
for dower accruing to defendant from the Ellis avenue prop-
erty, at the rate of §350 a year. The decree of the Superior
Court, on appeal to the Appellate Court for the First District,
was in all things affirmed. We are now asked to reverse that
affirmance.
When the case was here before (Doane v. Walker, supra,)
we held that a court of equity had jurisdiction to effect the
set-off prayed of a part of the rental value of the property
against and in discharge of such of the installments of dower
as were then due, and the residue against and in discharge
of such as should thereafter becoma due, until the same
should be exhausted, upon the ground of the allegations that
during the time the premises were unlawfully detained by
the defendant the rental value of the property amounted to
double her claim for dower, and she was insolvent. There
was, also, it is true, an allegation of waste referred to and
treated as a ground of equitable jurisdiction, but that of
set-off, on the grounds above stated, was held, of itself, to be
amply sufficient for that purpose, and it was dwelt upon in
the opinion as the most satisfactory. After quoting from
Bispham's work on Equity Jurisprudence, to the effect that
in cases of set-off, "where there is anything peculiar in the
case, so as to render it impossible for exact justice to be done
by a court of law under the statutes, a court of chancery
will afford relief through the medium of an equitable set-off, "
we said: "That the present case falls directly within the
rule here announced there is, in our judgment, no just reason
for doubt. * * * To recover a judgment at law against
her would not place him in any better position than he now
is, — his estate would still be incumbered with the lien for
unpaid dower. The relief which is indispensable to him is
to have such an adjustment of their respective claims as will
result in the removal of this incumbrance from his estate,
and this can only be enforced in a court of equity."
1883.] Walker v. Doane. 243
Opinion of the Court.
At the same time, upon the main question on the merits,
namely, whether the defendant was liable to the complainant
for the use and occupation of the premises from the date of
his deed, we held that the court, by the defendant's bill to
assign dower, acquired jurisdiction to pass upon whatever
rights she had in this property, including the right to occupy
it until her dower was assigned in all the lands of which her
husband died seized, and that consequently, the court having
entered a decree in the cause without therein providing for
her future occupancy of the property, and without having
therein postponed its operation till that event, she is con-
cluded by its provisions, and can not be heard to insist upon
any rights with respect to the property that are not secured
by the decree itself; that the appeal from that decree did
not vacate it, but simply suspended its operation, and when,
by the judgment of the Appellate Court, so much of the decree
as related to this and certain other property was affirmed,
and so much as related to the Fort Dearborn property was
reversed and remanded, there was such a severance that the
decree with respect to this property was no longer dependent
upon, nor to be affected by, the. decree relating to the Fort
Dearborn property, and necessarily that the decree with re-
spect to this property was final and conclusive upon the
rights therein of the defendant, wherefore she was liable to
the complainant for use and occupation from the date of his
deed, the decree for the payment of dower to her on account
of this property- having been rendered, and the first install-
ment thereof being due, prior to the date of his deed.
We have given the evidence preserved in the record a
thorough and careful examination, and we are of the opinion
therefrom that the evidence sufficiently sustains the material
allegations of the bill. The reasonable conclusion from the
evidence is, that the use and occupation of the property is
worth the amount found by the master ; and that Mrs. Walker
is and was insolvent, the evidence, though not excluding all
24:4: Walker v. Doane. [Nov.
Opinion of the Court.
doubt, unquestionably preponderates. It is unnecessary to
recapitulate the evidence at length, or to make further com-
ment upon it.
The bill filed by Mrs. Walker for the assignment of dower,
and all the proceedings thereunder up to and including the
decree thereon, were in the same court in which this suit was
instituted and tried, — i. e., the Superior Court of Cook county.
Accordingly, upon the hearing herein, Doane, by his counsel,
for the purpose of proving the contents of the petition, decree,
etc., instead of producing a certified copy of the entire record,
produced the originals, one at a time, and offered them in
evidence. Mrs. Walker's counsel objected to each and all
of them, upon the ground that proof should be made of the
entire record, and not of parts of it. The objection was
overruled, and the originals were read in evidence, as offered.
The objection is still pressed that this evidence was not com-
petent, on the ground of the objection urged at the hearing.
We think the evidence was properly admitted. It was unnec-
essary to introduce any more of the record than affected the
question at issue. (Phillips et al. v. Webster et al. 85 111. 146.)
The existence of the petition and the decree was alleged in
the bill and admitted in the answer. There was no question
respecting jurisdiction, and the only question was, what was
by the petition put in issue, and what was the decree therein ?
The files and records introduced were proved beyond doubt
to be the originals alluded to in the bill and answer, and none
other.
Counsel say, if the whole record had been introduced it
wTould have appeared that the dowress never acquiesced in
the decree, but assigned cross-errors therein as to this very
homestead property, etc. It may be answered, first, that if
any part of the record not introduced by Doane had been
deemed important to the interests of Mrs. Walker, she should
have offered it in evidence herself; second, that we are unable
to perceive how any importance can be attached to the cir-
18S3.] Walker v. Doane. 245
Opinion of the Court.
cuinstaiice whether Mrs. Walker did or did not assign cross-
errors in the Appellate Court in respect of so much of the
decree as affected this property. The transcript of the record
of the Appellate Court clearly shows no such errors were
regarded by that court, for it shows the court affirmed so
much of the decree as affected this property. We have at
no time laid any stress upon the question whether this decree
was such an one as Mrs. Walker desired. We have rested
our opinion upon the fact that instead of being satisfied to
enjoy the right of quarantine until her dower was assigned
by the heir, as provided by statute, she, herself, instituted
proceedings to have dower assigned in this and other prop-
erty, and thereon obtained a decree that there be paid her,
on account of her right of dower in this property, $350
yearly, in quarterly installments, commencing on the 21st of
May, 187S, (several months before the sale at which Doane
purchased,) and for the non-payment of any of these install-
ments the property is to be sold, and that by the affirmance
of this part of the decree, and by the reversal of that part
relating to the Fort Dearborn property, there was such sever-
ance as relieves any parties interested in this property from
all consequences that may result from the part of the decree
relating to that. The same order was observed in introduc-
ing the records of the petition, decree, etc., in relation to
the administrator's sale at which Doane purchased, and like
objection was urged, and a like answer must be given.
It is said, if the whole record had been introduced with
reference to that decree and sale it would have appeared
that Doane also bought the Fort Dearborn property. If it
was deemed important to the interests of Mrs. Walker to
prove this, we can perceive no reason why her counsel did
not, themselves, introduce that part of the record. Evidence
was subsequently offered by the counsel of Mrs. Walker to
prove that Doane was then in the possession and control of
the Fort Dearborn property, — not that he bought it at the
246 Walker v. Doane. [Nov.
Opinion of the Court.
administrator's sale, — but this was, as we think, properly
excluded. If, as we held before, the reversal of the part of
the decree affecting that property, and the affirmance of that
part affecting this, created such a severance of the former
unity as thereafter those relying upon the one part were not
chargeable with the consequences resulting from the other
part, then it can be of no importance here who became the
purchaser of the Fort Dearborn property. The dower decree,
and its effect upon the rights of parties, must stand or fall
by matters appearing of record, and not by the accidental cir-
cumstance of who may have subsequently become the owner
of the property on account of which the dower was allowed,
and against which the payment of its installments is made
chargeable.
The real point and gist of the very able and ingenious argu-
ment filed by counsel for Mrs. Walker, is directed, though
covertly, against our former opinion. We are not convinced
there is any substantial error in any of its positions, but the
question whether we were then right is not now before us.
In Newberry v. Blatcliford et at. 106 111. 584, we held, where
there is a second appeal in the same case, and the first deci-
sion covers the merits of the controversy in all its bearings, it
brings before us only the subsequent proceedings had after the
mandate of this court had been sent clown. Some little mat-
ters of makeweight were thrown in as aids to argument, or
as illustrations, in the original opinion, which have not been
literally proved, but they were unimportant. The decision
.did not turn upon any question of whether acts of Mrs.
Walker, disconnected from the records, referred to in the
pleadings and offered in evidence upon the hearing, affected
• he action of Doane ; and the record now before us shows
precisely the same records, and the connection of Mrs. Walker
therewith, as the former record did. Mrs. Walker petitioned
for the assignment of dower in the property whereof her hus-
band died seized. There is no proof that she was entitled
1833.] Walker v. Doane. 247
Opinion of the Court.
to dower in any other at that time, and she is entitled to no
presumption in that regard. That petition included the prop-
erty in which her husband had his homestead at the time of
his death. We conceive the reasons which actuated her to
file this petition wholly unimportant. The act was voluntary,
however much she may have felt, or may in fact have been,
wronged by conduct of others, which induced her to do the
act. The decree was in accordance with the prayer of the
petition. In her answer to the petition of the administrator
to sell the property to pay debts she set up no defence, and
no claim save that which she was seeking to enforce through
her petition for dower. The administrator's sale was there-
fore made subject to that right, and Doane, when he pur-
chased thereat, became simply bound to abide by that decree,
whatever it might be. The appeal from that decree did not
vacate it or destroy its lien — it merely suspended its opera-
tion, and when it was affirmed, it stood, for all purposes, just
as if the appeal had not been taken. (Oakes v. Williams, 107
111. 154.) The reversal as to the part affecting the Fort Dear-
born property, in legal presumption took from Mrs. Walker
nothing to which she is entitled. We must presume she will
obtain there all that is her due, and when it is legally proper
she should have it. Had Mrs. Walker not asked and obtained
a decree for the payment of dower out of this property, or
had the proceedings been commenced against instead of by
her, and she had meanwhile remained in possession and
insisted upon her right of quarantine, the case would have
been quite different.
A point not considered before is urged with reference to
the estate of homestead as distinguished from the right of
quarantine. This seems to be effectually answered by the
37th section of the Dower act, (chap. 11, Eev. Stat. 1874,)
which is as follows: "The surviving husband or wife shall
have the homestead or dwelling house, if he or she desires,
and such allotment shall not affect his or her estate of home-
248 Quinn et al. v. Eagleston. [Nov.
Syllabus.
stead therein ; but if the dower is allotted out of other lands,
the acceptance of such allotment shall be a waiver and release
of the estate of homestead of the person entitled to dower,
and his or her children, unless it shall be otherwise ordered
by the court." Here the dower has been allotted to Mrs.
Walker out of other lands. It must be regarded as accepted
by her because allotted upon her petition, and the decree of
court does not otherwise provide.
The decree is affirmed.
Decree affirmed.
Walker and Craig, JJ., dissenting.
James Quinn et al.
v.
Thomas C. Eagleston.
Filed at Ottawa November 20, 1883.
1. Ancient dpds — of the proof of their existence for thirty years.
Certain deeds purporting to have been executed in 1832 and 1839, but not
acknowledged according to law, were admitted in evidence in behalf of the
plaintiff in an action of ejectment, as ancient deeds, on proof that they had
been actually recorded in the proper county twenty-nine years before the
commencement of the suit in which they were received, and they being shown
' to have been in the possession of the party in possession of the land before
the plaintiff, and to have remained with him until his death, and it being
shown that one of the deeds had been recorded more than forty years before
the suit was brought: Held, in the absence of evidence of fraud or suspi-
cious circumstances, that this was satisfactory proof that the deeds had been
in existence for thirty years, and entitled them to be read in evidence as
ancient deeds.
2. Evidence — declarations and statements as part of the res gestae.
On a question of a boundary line, when it appears that a prior owner, since
deceased, built his fence a rod within his lines, the declarations of such
person; while the owner and in possession of the land, explanatory of his
intention in leaving a strip of land open, is properly admitted in evidence in
1883.] Quinn et al. v. Eagleston. 249
Statement of the case.
behalf of a person claiming under such prior owner, as part of the res gestae,
as accompanying the act of throwing the strip open and keeping it open.
3. So on the question of the boundary line between two tracts of land,
where the owner of one tract left a strip on one side of it a rod wide unin-
closed, and the owner of the adjoining tract, in 1831, joined his fence around
the other tract to that, the declarations and statements of such latter party at
the time of taking possession of his tract and joining his fence to that on the
adjoining premises, was held proper evidence in favor of his grantee, as
accompanying his acts and going to show the character of the act as being
hostile or otherwise, but that they would be but slight evidence of adverse
possession as to the strip, being niade in the absence of the owner of the
other tract.
4. Instruction — as to the legal effect of deeds in ejectment. In an
action of ejectment the court instructed the jury that the plaintiff having
produced in evidence deeds showing a complete chain of title from the
United States to himself for the land sued for, had proved title in himself.
There was no evidence in opposition to the deeds: Held, that the instruction
was proper, it being the duty of courts to construe writings, and instruct
juries as to their force and effect.
5. Same — as being based on evidence. An instruction is not improper,
as not being based on the evidence, merely because there is no direct evi-
dence of the fact upon which the instruction seems to be based, when the
jury is warranted in. inferring such fact from the circumstances of the case
and the acts and conduct of the parties.
6. Ejectment — proof of defendant's possession. Where a defendant
attempted to fence up a strip of the plaintiff's land, but did not complete his
fence entirely across the same, his object being to take possession of the
whole strip, it was held, that the jury were justified in finding that the defend-
ant had dispossessed the plaintiff of such strip.
Appeal from the Circuit Court of Stark county ; the Hon.
David McCulloch, Judge, presiding.
This was an action of ejectment, commenced February 21,
18S3, and brought by Thomas C. Eagleston, against James
Quinn and John Gustafson, to recover possession of a strip
of land about one rod in width, across the north end of the
west half of the north-west quarter of section 14, town 13
north, range 7 east, in Stark county, in this State, lying north
of the line of a hedge running across said tract of land, con-
taining about one-half acre.
250 Quinn et al. v. Eagleston. [Nov.
Statement of the case.
It appears from the evidence that in the year 1851 John
T. Eagleston, the father of the plaintiff, and under whose
title plaintiff claims, purchased the said north-west quarter of
section 14, which at that time was in the open prairie, at a
distance from any improvement. The county surveyor, after
much difficulty, succeeded in finding what was considered the
original mound of the government survey, at the north-west
corner of section 14, and established it as such corner. A
stone was placed in the mound, which has remained there
ever since. Soon after purchasing the land, John T. Eagles-
ton built a cabin, and moved on the land in the fall of 1851,
and in IS 52 he inclosed it with a rail fence according to the
survey of the county surveyor, running his fence directly east
from the corner stone set as on the north line of his quarter.
Some years after that he planted a hedge upon the north and
west sides of his land, setting the hedge in upon his own
land one rod from his supposed line. After the hedge was
grown, the old rail fence was permitted to decay and fall
down, except some twenty-five or thirty rods on the north,
where the hedge failed to grow, in a pond or flat piece of
ground. Across this flat ground the rail fence has always
been kept up upon the line, making the offset one rod wide and
about twenty-five or thirty rods long between the hedge line
and the line of the rail fence, there being connecting fences
with these lines on the east and west ends of the offset, which
has always remained within Eagleston's inclosure until De-
cember, 1882, when defendant Quinn entered and erected a
fence on the line of the hedges nearly across the flat ground,
claiming the hedge to be the boundary of Eagleston's land,
and that the strip one rod wide between the hedge and the
line of the old rail fence belonged to him. Defendant Quinn
claims to own the west half of the south-west quarter of sec-
tion 11, in the same township and range, and derives his
title from one William Luce, who fenced it about IS 61, join-
ing the fences on the east and west lines to Eagleston's fence
1883.] Quinn et al. v. Eagleston. 251
Brief for the Appellants.
on the south. Neither Luce, nor Quinn, who bought from
Luce in 1867, ever built any fence across the south end of
their tract. Quinn claims the hedge to be the north boundary
of Eagleston's land, and that the strip one rod wide between
the hedge and the line of the old rail fence belongs to him,
Quinn. The other defendant is his tenant. The plaintiff
recovered in the court below, and the defendants appealed.
Mr. Fred. S. Potter, for the appellants :
There was error in admitting the three deeds not properly
acknowledged, as ancient deeds. There is no presumption
that a deed is thirty years old that arises from anything on
the paper. It must be shown to be that old at the time it is
offered in evidence, by evidence aliunde, and it should appear
that the party claimed under such deed. Smith v. Rankin,
20 111. 14; Whitman et al. v. Henneberry, 73 id. 109.
These deeds and their genuineness were questions for the
jury, under all of the evidence. Plaintiff's first instruction
told the jury that "the plaintiff has produced in evidence
deeds showing a complete chain of title from the United
States to himself." The deeds complained of were in the
"chain." The permitting them to be read does not decide on
the final influence of the evidence as to its reality — that is
for the jury. 2 Phillips on Evidence, (4th Am. ed. C. & PL's
notes,) 477, also pp. 475-480.
The court improperly admitted proof of the declarations of
the plaintiff's father after he had fenced out the strip in ques-
tion. Such declarations are admissible only as a part of the
res gestcE, and they must be a part of the thing clone. Had
they been made while the fence was being set, or before he
lost possession, it might have been within the rule.
Ejectment will not lie in favor of one in possession. Heed
et al. v. Taylor et al. 56 111. 291,
If plaintiff's father's declarations were proper evidence,
certainly those of Luce, made at the time he built his fence
252 Quinn et al. v. Eagleston. [Nov.
Brief for the Appellee. Opinion of the Court.
and joined it to the Eagleston hedge, in regard to the owner-
ship of the land clown to the hedge, were.
Plaintiff's first instruction, that the plaintiff had shown
title, is bad, as taking the finding of important facts from
the jury. The court has no right to tell them what facts are
proved. VanDuzor v. Allen, 90 111. 504; Hubner v. Feige,
id. 212.
Mr. Miles A. Fuller, for the appellee :
The proof made in respect to the deeds, with no evidence
of fraud or suspicious circumstances, was sufficient to show
they had been in existence thirty years, and entitled them to
be read in evidence. " Whitman v. Henneberry, 73 111. 113;
Fell v. Young, 63 id. 106.
We understand the rule to be well established that the
declarations of a party in possession, explanatory of his acts
or of his possession, are admissible in evidence as a part of
the res gestae, and in this case were competent to show that
by placing his hedge inside of the line he did not thereby
intend to surrender possession, or his claim, to the land out-
side of the hedge. 1 Greenleaf on Evidence, sees. 108-111 ;
Proctor v. Town of Lewiston, 25 111. 153; Buchanan v. Curtis,
25 Wis. 107; Irwin v. Dixon, 9 How. (U. S.) 10; Fyffe v.
Fyffe, 106 111. UQ.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
It is assigned for error that the verdict of the jury is not
supported by the evidence.
There seems to be no question as to the plaintiff's owner-
ship of the north-west quarter of section 14, and the principal
point of controversy is as to the location of the boundary
line between the parties, though it is also contended by the
defendants that the strip of land in question has been occu-
pied by them under a claim of ownership for over twenty years,
1883.] Quinn et at. v. Eagleston. 253
Opinion of the Court.
which constitutes a bar to a recovery. Without attempting
a review of the evidence, we will say that after a full exam-
ination of it we are satisfied with the finding of the jury in
favor of the plaintiff on both the above named points of con-
test, and find no reason for disturbing the verdict on the
ground of its not being warranted by the evidence.
It is insisted that at least as to that part of the land in
the slough, or what is called the "offset," defendants are not
guilty, on plaintiff's own testimony that "no fence has been
on the line of the hedge across the space ; the strip in the
jog has been in my field, and has never been separated from
it until last fall, when the defendants built one there, but not
clear across." The fence not being built clear across, would
not take that part out of the possession of plaintiff, it is said,
and that plaintiff could not recover for land in his own pos-
session. We can not say that the jury were not justified in
finding that part was essentially separated from plaintiff's
field, although the fence did not extend entirely across the
offset. The evident purpose in making the fence was to with-
draw that part from Eagleston's inclosure and include it in
Quinn's own, and extend his possession to the line of the
hedge, and the jury might regard that this had been done,
practically.
Various rulings of the court are excepted to. The first is
as to the admission in evidence of the following deeds : Con-
nor to Koacls, dated February 18, 1832, and recorded Decem-
ber 31, 1853; Koads to Bixler, dated April 13, 1839, and
recorded December 31, 1853; and Bixler to Drummond,
dated July 31, 1839, and recorded December 23, 1839. The
deeds were not acknowledged according to law, and were
admitted as ancient deeds. The objection is that there was
not proof that the deeds were in existence at least thirty years
before they were offered. Mr. Fuller testified that as plain-
tiff's attorney he made inquiry and search for these deeds,
which were not in plaintiff's possession, and found them tied
254 Quinn et al. v. Eagle ston. [Nov.
Opinion of the Court.
up in a package, with other deeds, among the old papers of
John T. Eagleston, deceased. They were shown to have been
actually recorded in Stark county over twenty-nine years
before the commencement of this suit, and to have been in
the hands of John T. Eagleston, the party then in possession
of the land, and to have remained with him until his death.
The last deed of the three, (Bixler to Drummond,) which is
dependent upon the other two, and would not, we may sup-
pose, have been made had not they (the deeds from Connor
to Roads, and from Eoads to Bixler,) been previously exe-
cuted, was actually recorded in Stark county more than forty
years before this suit was begun. This, with no evidence of
fraud or suspicious circumstances, was, we deem, satisfactory
proof that these deeds had been in existence for thirty years,
and entitled them to be read in evidence as ancient deeds.
Fell v. Young, 63 111. 106 ; Whitman v. Heneberry, 73 id. 109.
Another ruling complained o^is in permitting the plaintiff
to prove what was said by John T. Eagleston (now deceased)
when he was in possession of the premises, as to his reason
for planting his hedge in from the line of his land, and leav-
ing a strip of land one rod wide outside of the hedge. The
planting the hedge in from the line of the land was an equiv-
ocal act. It might be interpreted as a dedication to the pub-
lic, or as setting the hedge on the true line. The declarations
of Eagleston when he was the owner and in possession of the
land, explanatory of his intention in leaving the strip of land
open, we think were properly admitted in evidence as a part
of the res gestce, as accompanying the acts of throwing the
land open and keeping it open. Proctor v. Town of Leiviston,
25 111. 153; Buchanan v. Curtis, 25 Wis. 99.
Exception is also taken to the refusal to permit the witness
Dickerson to answer the following question, put by defendants'
counsel : "What did Luce say, if anything, at the time he
took possession of his eighty, and built his fence on his west
line, and joined it up to the Eagleston hedge ; state what he
1883.] Quinn et at. v. Eagleston. 255
Opinion of the Court.
said upon that point, if anything?" There was no objection
to the form of the question. We think it should have been
allowed, for the same reason that evidence was properly
received of Eagleston's declarations. It would be evidence
accompanying the act of Luce, going to show the character
of the act as being hostile or otherwise to Eagleston's title,
and as bearing upon Luce's and defendant's possession of the
strip in question, whether it was permissive on the part of
Eagleston, or adverse to him, twenty years' adverse posses-
sion being one ground of defence. Still, we are not prepared
to say that the denial of this evidence was an error so mate-
rial that it should cause a reversal of the judgment. Such
claim of ownership on such an occasion, in the absence of
Eagleston, would be but slight evidence of adverse possession,
and especially as all the evidence besides does not seem to
show any reasonable ground of claim of an adverse posses-
sion arising before 1867, which would be less than twenty
years before suit brought, when a new survey was made by
another county surveyor, and a different corner was estab-
lished as the north-west corner of section 14 from the one
established by the former county surveyor. Until that time
there does not seem to have been any question of the correct-
ness of the corner first established, and so no reason until
then for regarding defendants' possession as adverse.
Objection is taken to the ruling on instructions. That the
jury were instructed for plaintiff that he having produced in
evidence deeds showing a complete chain of title from the
government of the United States to himself, for ninety-three
acres of the west side of the north-west quarter of section 14,
etc., had proven title to himself in that part of the quarter
section. There was no evidence in opposition to the deeds,
and the instruction was proper. It is the duty of courts to
construe writings, and to instruct juries as to their force
and effect.
256 Quinn et al. v. Eagleston. [Jan.
Opinion of the Court.
Plaintiff's fourth instruction was, in substance, if Eagles-
ton permitted Luce to join on to his fence, and it was under-
stood by them that the land was Eagleston's, then Luce's
possession was not hostile. The objection to this instruction
is, that it was not based on the evidence ; that there was no
evidence tending to show that Luce and Eagleston ever met
or spoke to each other on this subject. Such an understand-
ing might have existed between the parties, and the jury have
been warranted in inferring that it did, from circumstances
in the case, such as, that the rail fence was still standing on
the line, the purpose for which plaintiff set the hedge in from
the line, the fact that the county surveyor had established
the north-west corner, and it had never been questioned, etc.,
without proof at this late day of any conversation between
the parties. Such circumstances go to show that the joining
of Luce's fences to Eagleston's, without permission, would
have been regarded as a trespass, and it is not likely that a
trespass was committed and suffered. We do not think the
objection well taken.
The sixth instruction relates only to the part within the
"offset," and the criticism made upon that is, that it assumes
that the defendants built their fence across it, when the evi-
dence is that the fence was not built "clear across." We
have before remarked upon the circumstance of the fence not
being built entirely across the strip in the offset, as warrant-
ing a recovery for that part, and according to what we have
said it will be seen that we regard this variance in the
instruction from the evidence as immaterial.
We perceive no error in the refusal of instructions asked
by the defendants.
Finding no material error in the record, the judgment will
be affirmed.
Judgment affirmed.
1884.] Dowden et al. v. Wilson. 257
Syllabus.
Z. Dowden et al.
v.
Jesse F. Wilson.
Filed at Springfield Oct. 1, 1883 — Rehearing denied January Term, 1884.
1. Pkactice — remedy of party aggrieved by a decree in vacation.
Where a cause is taken under advisement by the court, and a decree, order or
judgment therein entered of record in vacation, under sec. 30, chap. 37, Rev.
Stat. 1874, the party objecting thereto should, on or before the second day of
the next succeeding term of the court, enter a motion, on notice to the oppo-
site party, to set aside or modify the same, and if not so set aside or modified
it becomes final. This statute, by having prescribed a mode of practice in
such a case, must be treated as excluding any other. Therefore, a motion
made to the judge in vacation to set aside a decree so entered is not allowed.
2. Same — entering decree as of the term the cause is submitted. Sec.
31, chap. 37, Kev. Stat. 1874, requires the consent of the parties appearing
of record to authorize a decree rendered in vacation to be entered as of the
term at which the cause is submitted, and where the record shows no siich
consent, the party objecting will not be deprived of his right to apply to the
court by the second day of the next term for a new hearing, under section 30,
chapter 37.
3. Evidence— secondary — certified copies of depositions on destruction
of originals. Where depositions taken in a cause were destroyed by fire,
and in a second suit, in which the parties and subject matter are identical
with the first, an agreement was made to admit the transcript of the record of
the first suit filed in the Supreme Court, as evidence, which, on application,
was not allowed to be withdrawn, it was held, that copies of depositions of a
party in the former suit, duly certified by the clerk of the Supreme Court,
were competent evidence on the hearing of the second suit, and proper to be
considered.
4. Failure of consideration — sale of patent— evidence must estab-
lish defence. Where a defence is interposed to the foreclosure of a mortgage
given to secure notes given for the sale of a patent for a wagon brake, that the
patent is worthless, the defendant must prove that fact, and where he has
had ample time to make and test the quality of such brakes at a slight ex-
pense, and does not, and produces no witness that ever saw such brake prac-
tically tested, but relies solely on the opinions of witnesses not shown to be
experts, his defence will not be established.
5. Same — must have its foundation in the pleadings, or must be perti-
nent to an issue. The allegations in an answer to a bill in chancery, and
proofs, must agree, to render a defence available. So where an answer to a
17—1(18 III.
258 Dowden et al. v. Wilson. [Jan.
Brief for the Appellants.
bill to foreclose a mortgage to secure notes given on the purchase of a patent
contains no allegation that certain representations were made, -which were
false, to induce the purchase, proof of such fact will not avail as a defence.
6. Fraud — in representations usual in commendation of thing sold.
Representations, such as are usual in commending an article sold, can not be
relied on as fraud to defeat a suit to recover the price agreed to be paid for
the same.
7. Rescission foe fraud — party seeking must place vendor in statu
quo. A party purchasing a patent for the manufacture of a brake to wagons,
before he can rescind the contract of sale on the ground of fraudulent repre-
sentations must first restore or offer to restore the patent to the vendor. He
can not hold that and escape paying for the same according to his contract.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the Circuit Court of Ford
county; the Hon. Owen T. Beeves, Judge, presiding.
Mr. Calvin H. Frew, for the appellants :
The depositions of Dowden taken in the first suit upon
the identical issue in defence in this suit, are legitimate
evidence on the hearing of this cause, and being destroyed
by fire, secondary evidence of their contents was proper.
1 Greenleaf on Evidence, sees. 82-84, note 2.
This rule does not require that the evidence shall be an
exact copy of the whole instrument. Eicldey v. Farrell, 69
111. 264 ; Fisher v. Greene, 95 id. 94.
The transcript of the record filed in the Supreme Court is
competent evidence, but when the copy has become a record
of a court, an examined copy or a certified copy may be
used. 1 Greenleaf on Evidence, sec. 91 ; Dickinson v. Smith,
25 Barb. 105 ; Robertson v. Lynch, 18 Johns. 451 ; Jackson v.
Cole, 4 Cow. 595.
The certificate of the evidence, though styled a copy, may
well be considered an original for certain purposes. Cornell v.
Williams, 20 Wall. 245; Radclif v. United Ins. Co. 7 Johns.
43; Eagle Manf. Co. v. Bradford, 57 Ga. 249; Eeynolds'
Stevens on Evidence, 110; Hoyt v. Shipherd, 70 111. 309;
1SS4.] Dowden et al. v. Wilson. 259
Brief for the Appellee.
White et al. v. Hen-man, 62 id. 73 ; Harding v. Larkin et al,
41 id. 413.
If the patent is not for a new invention, possessing no nov-
elty, it is invalid, and no consideration for a grant. Hind-
march on Patents, 61; Brown v. Guild, 23 Wall. 181 ; Smith
v. Nichols, 21 id. 117; Rubber Tip Pencil Co. v. Howard, 20
id. 49S ; Sewall v. Jones, 1 Otto, 91 ; Cross v. Huntley, 13
Wend. 386; Burnham v. Brewster, 1 Vt. 90; Dickinson v.
Hall, 13 Pick. 230.
If the patent is shown to be worthless, no recovery can be
had on notes given for the same. Peck v. Farrington, 9 Wend.
41 ; Fallas v. Griffith, Wright, (Ohio,) 303 ; Kernodle v. Grant,
4 Blackf. (Ind.) 61 ; Dart v. Brockway, 11 Ohio, 471 ; Geigcr
v. Cook, 3 W. & Serg. 270 ; Mullikin v. Latchum, 7 Blackf.
(Ind.) 138 ; J oil iff e v. Collins, 21 Mo. 343 ; McClure v. Jeffrey,
8 Ind. 82; Foss v. Richardson, 11 Mo. 670; Scott v. Sweet
et al. 29 Greene, 224 ; Cragin et al. v. Fowler et al. 34 Yt.
326 ; Clough v. Patrick, 37 id. 421.
The decree was made in vacation, with the understanding
that neither party should thereby waive any of their legal
rights. Then, if the court had no authority to grant a rehear-
ing in vacation, the decree entered in vacation was void.
Messrs. Tipton & Gkay, for the appellee :
There was no error in overruling the motion for a rehear-
ing. Consent can not confer jurisdiction nor authorize a
judge in vacation to exercise the power of a court. Bancroft
v. Eastman, 2 Gilm. 264; Welch v. Bynes, 38 111. 20; Keith
et al. v. Kellogg et al. 97 id. 147 ; Blair v. Reading et al. 99 id.
600.
Motion for rehearing must be made at the term the decree
is rendered, (Delahay v. McConnell et al. 4 Scam. 156,) and
must be had before decree entered. Hughes et al. v. Wash-
ington et al. 65 111. 245.
260 Dowden et al. v. Wilson. [Jan.
Opinion of the Court.
No attempt was made to rescind the contract, nor can the
sale be rescinded in this proceeding. 52 N. H. 316; Buch-
anan v. Harvey, 12 111. 336.
To rescind, the party must offer to put the other party in
statu quo. Barge v. Cedar Rapids R. R. Co. 32 Iowa, 101 ;
Parker v. Marquis, 64 Mo. 38 ; White v. Thayer, 121 Mass.
227; Barfield v. Price, 40 Cal. 535; Groves v. Sanders, 3
Otto, 55 ; Constant v. Chapman, 3 Moak, 178.
A party can not rescind a contract and at the same time
retain the articles purchased. Jennings v. Gage, 13 111. 610 ;
Cooley v. Bingham, 1 Mete. 550; Miner v. Bradley, 22 Pick.
457 ; Persley v. Balch, 23 id. 286 ; Norton v. Young, 3 Greenlf.
30; C ashman v. Marshall, 21 Maine, 122; Sumner v. Parker,
36 N. H. 449; Scott v. Billney, 40 Miss. 119; Underwood v.
nTes£, 42 111. 403 ; Lamed v. Holmes, 40 Miss. 30 ; Harding
v. Hoodley, 11 Wheat. 103; Slaughter v. 6r?-«e?i, 13 Wall. 379.
If the admission of the depositions in evidence could not
have changed the decree, there was no error in excluding
them.
The general rule as to the admission of office copies does
not apply to depositions. Rex v. Howard, 1 M. Eobb. 189.
A copy of a copy is not admissible. Starkie on Evidence,
(9th ed.) 270; 1 Wharton on Evidence, sec. 133, and note 5;
Liebman v. Pooley, 1 Starkie's N. P. 167.
Mr. Justice Walker delivered the opinion of the Court :
Appellee in this case filed a bill in the Ford circuit court,
against appellants, to foreclose a mortgage given on a tract
of land in that county, to secure three promissory notes,
amounting in the aggregate to $1000. This is a second suit
commenced in that court to foreclose the same mortgage.
The first bill was filed by the same complainant against the
same defendants. That case was heard, a decree rendered,
and appealed to this court, where the decree was reversed,
1884.] Dowden et al. v. Wilson. 261
Opinion of the Court.
and the cause ordered to be remanded, but the order was not
applied for or issued within two years, and the case became
discontinued.
On the trial of this case it was proved that the records
and files in the former case were destroyed by the burning of
the clerk's office of that court. On the hearing appellants
offered and read in evidence copies of two depositions of de-
fendant Dowden, taken and read in evidence on the trial in
the former case. The copies were from the transcript of the
record in this court, and were properly certified to be true
copies by the clerk of this court. They were read on the
hearing, subject to the objections of complainant. There
had been filed among the papers of this case, at or before the
hearing, an agreement between counsel of the respective par-
ties, that counsel for defendants might, on the hearing, read
the transcript of the record in this court, but being unable
to procure leave to withdraw it for the purpose, on an appli-
cation he procured the copies thus certified, and complain-
ant's counsel objected because they were copies. In deciding
the case the court, it is claimed, declined to consider the
copies of these depositions. When the case was heard and
submitted at the April term, 1SS2, the court took the case
under advisement, to be decided in vacation, and on the 30th
day of August following, a final decree foreclosing the mort-
gage was filed, entitled of the preceding April term, and
recorded by the clerk as of that term. Subsequently appel-
lants' counsel, on the 4th day of October, 1882, applied to
the judge in vacation for an order for a rehearing, but the
application was denied, and defendants perfected an appeal
to the Appellate Court for the Third District, where the
decree of foreclosure was affirmed, and they appeal to this
court.
The first question we shall consider is, whether the judge
erred in refusing, on the application in vacation, to grant a
rehearing of the case. We regard the 47th section of chap-
262 Dowden et al. v. Wilson. [Jan.
Opinion of the Court.
ter 37 as settling the practice in such cases. It provides
that where a cause or matter is taken under advisement, and
it is decided in vacation, the judgment, decree or order may
be entered of record in vacation, but such judgment, decree
or order may, for good cause shown, be set aside, or modified,
or excepted to at the next term of the court, on motion filed
on or before the second clay of the term, of which the oppo-
site party, or his attorney, shall have reasonable notice, and
if not so set aside or modified, it shall thereupon become final.
This section afforded appellants the opportunity, at the De-
cember term, 1882, to apply and show cause for setting aside
the decree and obtaining a re-trial. The statute does l not
contemplate such an application in vacation, nor can we see
the slightest necessity for such a practice, as all can be had by
an application in term time that could be in vacation. Where
the statute has prescribed one mode of accomplishing a pur-
pose, which is full and complete, it must be presumed that
other modes were intended to be excluded. Nor were defend-
ants deprived of this right by the decree being entitled of,
and the clerk recording it as of, the April term. That could
be done only as prescribed by the 48th section of the same
act. That section requires the consent of the parties to
authorize a decree rendered in vacation to be entered as a
decree of the term at which the case was submitted and
taken under advisement. The record in this case shows no
such agreement, and inasmuch as appellants took no steps
to set aside the decree at the December term, they have
waived all right to have the decree set aside, and to have a
re -trial.
Inasmuch as the copies of the depositions of Dowden were
read in evidence, they must be considered, unless complain-
ant's objection was well taken. Were they properly admitted
under the agreement that the record might be read? We
think they were. In substance and in fact there was not a
particle of difference between that portion of the transcript
1SS4.] Dowden et al. v. Wilson. 263
Opinion of the Court.
and the true copies that were read. It is a mere quibble to
say that they are not the same in substance, or to say that
complainant was taken by surprise, or that he sustained a
particle of injury by reading the copies instead of the origi-
nals as contained in the transcript on file in this court.
Although copies were not specifically named in the agree-
ment, they were within the implication and spirit of the
agreement, and were properly admitted, and should have
been considered by the court below. But we, on an appeal
in a chancery case, consider all the evidence properly in the
record, and must consider the depositions in connection with
the other legitimate evidence in the case.
Having disposed of these preliminary questions, we shall
proceed to consider the case on its merits. Does the evidence
sustain the decree? There is no question that the notes were
given for the purchase of a patent right to a brake for wagons,
etc. There was no other consideration for the notes or the
mortgage securing them. Had appellants been fully satisfied
the brake was worthless, why. did they not, in the years that
have elapsed since the decree was reversed, have a brake
constructed, and its quality fully tested? It would have
required but slight expense or trouble. It was not done,
and no doubt because it would in all probability have proved
to be all that it was represented. None of the witnesses,
except one, pretend ever to have seen " a brake made from
this model, and he only saw it attached to a wagon standing
still. It is not probable that he could, from the standing-
wagon, form a correct opinion as to its working in descending
a hill, when its operation would be tested. None of the other
witnesses ever saw anything more than the model, and they
say that they had seen others that were worked on the same
principle, and this was worthless. They only state their
opinions. They do not state or explain the principle, or give
any reason why it would not work. Although they say they
are experts, we fail to see they were.
264 Dowden et al. v. Wilson. [Jan.
Opinion of the Court.
Again, independent of that, the defence fails for other rea-
sons. It is claimed that the invention was not new, and that
fact is proved by the evidence, and not being true, there was
a fraud perpetrated on appellants, and the consideration had
failed. On turning to the answer we find that no such rep-
resentation is alleged to have been made when Wilson pur-
chased. The allegations and proofs must agree to render a
defence available. Whatever the proofs may establish, there
is no allegation in the answer that the patent was represented
to be a new invention, and hence this evidence has no appli-
cation to the answer, as that is not set up as a defence. The
other representations were only such as are usual in com-
mending an article for sale, and were not fraudulent, and
require no further consideration. Moreover, appellants, so
far as we can see from the record, have never offered to
release or cancel the deed conveying to them the right to
manufacture and vend the brake, nor do they offer in their
answer to do so, but so far as we can see they still hold the
right to manufacture and vend the brake. Even if there was
fraudulent representation set up as a defence, or failure of
the consideration in the purchase, appellants should have
restored, or offered to restore, the title to the patent to the
vendors. They have no right to hold that and escape paying
the consideration for the notes and mortgage. What else the
proofs may show, there is no allegation or proof that the title
was reconveyed, or offered to be reconveyed. This, of itself,
precludes appellants from insisting upon the defence
For these reasons the decree of the court below is affirmed.
Decree affirmed.
Mr. Justice Scott : I d,o not concur in this opinion.
1884.] Connecting Ky. Co. v. Union By. Co. 265
Sjdlabus. Statement of the case.
The East St. Louis Connecting Kailway Company
v.
The East St. Louis Unton Eailway Company.
Filed at Springfield Oct. 1, 1883 — Rehearing denied January Term, 1884.
1. Railroad franchise — not an exclusive right — competing lines al-
lowable. The mere grant of the right to build a railroad between given
termini creates no implied obligation by the State to not thereafter grant the
right to build other railroads parallel with it between the same termini; nor
does it imply an obligation on behalf of the State that other railroads, with
their tracks and switches, shall not thereafter be granted the right to cross
the State in a different direction, and thus pass over its tracks and switches.
2. The public welfare requires that the business of carrying shall be open
to competition, as far as possible, and no monopoly in that regard, however
limited the sphere of its operation, can be presumed to have been intended
by the legislature in the enactment of the general law for the formation of
railroad corporations.
3. Under the laws of this State a railway corporation already organized
and operating its road can not enjoin another such corporation, organized
under the same general Railroad act, from building a rival road between the
same termini, and parallel with the track of the former, for the transaction of
the same business, although its main and lateral tracks and switches may be
intersected and crossed by the proposed new road, no continuous portion of
its track being sought to be taken. The fact that the construction of the new
road may damage the business of the old one, and cause delay in operating
its trains, affords no ground for enjoining proceedings to condemn for a right
of way by the new corporation. Legal damages assessed as is provided by
law will afford the old company an adequate remedy for all the injury it may
sustain.
Appeal from the Circuit Court of St. Clair county ; the
Hon. Amos Watts, Judge, presiding.
This was a bill in chancery for an injunction, by the East
St. Louis Connecting Kailway Company, against the East
St. Louis Union Eailway Company. The bill was filed in the
City Court of East St. Louis, and a temporary injunction was
thereupon granted. Subsequently, the venue was' changed to
the circuit court of St. Clair county, and on a final hearing
266 Connecting Ey. Co. v. Union Ey. Co. [Jan.
Statement of the case.
that court dissolved the temporary injunction and dismissed
the bill. This appeal is from that decree.
It is alleged in the bill that the complainant, on the 26th
of December, 1877, duly organized under the general law of
the State as a railroad corporation, for the purpose of con-
structing and operating a single or double track railroad from
Venice, in Madison county, to the Illinois and St. Louis Kail-
road Company's dyke, in St. Clair county, with lateral tracks
connecting with the various railroad tracks, elevators, mills,
stock yards, river transfer tracks and landings, between said
points, that now are or hereafter may be constructed ; that
the city of East St. Louis, on the 5th of August, 1878,
granted said company, by ordinance, the right of way along
Front street, with lateral tracks across the same ; that on
the 8th of October, 1878, on petition of the owners of three-
fourths of the real estate fronting on said Front street, the
said city, by ordinance, granted additional privilege to com-
plainant on said street ; that the complainant, at an expense
of more than $100,000, constructed its main tracks and lat-
eral tracks, connecting its main tracks with the various rail-
roads and depots, elevators, car ferry landings, and mills, as
shown in a plat which is made an exhibit to the bill, and has
been for several years transacting a general carrying and
transfer business for the divers railroads, elevators, ferry
landings and warehouses abutting upon and adjacent to
Front street, over its main tracks and the lateral tracks con-
necting therewith, transferring on an average 13,000 cars a
.month, realizing large sums of money therefor, all of which
transferring is necessarily done over the lateral tracks upon
Front street, and that without the use of the lateral tracks,
or if there is a substantial destruction of their usefulness by
obstructions, the business of complainant would be almost
wholly lost and destroyed, and said railroad, and the value
thereof, destroyed; that on the 2d day of December, 1882,
the city of East St. Louis passed an ordinance purporting to
1884.] Connecting Ky. Co. v. Union Ey. Co. 267
Statement of the case.
grant the right of way in Front street, together with lateral
tracks across the same, to the defendant, which ordinance is
made an exhibit to the bill, and alleged to be void ; that on
the 24th of June, 1882, the East St. Louis Union Kailway
Company filed articles purporting to incorporate the same
as a railroad corporation, in the recorder's office of St. Clair
county, Illinois, for the purpose of constructing and operating
a single or double track railroad from the north end of Front
street, in the city of East St. Louis, St. Clair county, Illinois,
beginning at a point in said street one hundred and fifty feet
north of Spring street, to a point one hundred and eighty
feet south of Trendly street, in the city of East St. Louis,
county aforesaid, with lateral tracks connecting the main
tracks with the various railroad tracks, elevators, warehouses,
stock yard, river transfer tracks and landings, between said
points, that now are or hereafter may be constructed ; that
on the 22d day of December, 1882, the East St. Louis Union
Kailway Company presented its petition to the county judge
of St. Clair county, against the complainant, (who set the*
time for the hearing thereof January 8, 1883,) for the con-
demnation of the right to cross the lateral tracks of com-
plainant between the northern end of Front street and Bogy
street, alleging therein that there were twelve such tracks,
whereas there are eighteen ; that the said Union railway
threatens to follow such condemnation by condemnation
across the other lateral tracks of complainant, and will at
once condemn and take possession of said tracks and con-
struct crossings over the same, unless restrained ; that the
location of the Union railway, as shown by the aforesaid plat,
passes over the switches and frogs of seven of the lateral
tracks mentioned in the condemnation proceedings, and that
the construction of the crossings as located will utterly destroy
said switches and entirely prevent the use of said seven lat-
eral tracks ; that its lateral tracks are indispensably neces-
sary to the use and operation of the East St. Louis Connecting
268 Connecting Ky. Co. v. Union Ry. Co. [Jan.
Statement of the case.
railway and the carrying on of its business ; that the con-
struction and operation of the East St. Louis Union railway
over the lateral tracks of complainant, as proposed in the
location of its road, and described in its said condemnation
proceedings, as shown by the plat filed herewith, will render
it impracticable for complainant to carry on its business and
exercise its rights and franchises as a railroad corporation,
and will be a substantial destruction of its property and
franchises, and not for another and different or higher use,
and will work an irreparable injury to complainant. The
prayer is that the defendant may temporarily be restrained
from proceeding with said condemnation proceedings, and
from making said crossings over said lateral tracks, and that
upon a final hearing the injunction be made perpetual.
The answer denies the organization of the complainant as
a railroad corporation, as alleged in the bill, and says that it
is not a corporation de jure; admits the passage of ordinances
Nos. 315 and 319 ; that persons acting under the name of the
East St. Louis Connecting Railway Company did build cer-
tain main tracks and lateral tracks on Front street, in East
St. Louis, but denies that it cost $100,000 so to do ; that said
persons, under the name of the East St. Louis Connecting
Railway Company, have been doing a large business on Front
street, transferring cars, etc., but states the fact to be that .
the facilities of said persons are not sufficient for doing all
the business which the public demands require to be done on
said street ; admits the passage of ordinance No. 378 by the '
city council of East St. Louis, but denies that it is null and
void ; alleges that the defendant is a railroad corporation
duly organized by virtue of the act of March 1, 1882, and is
desirous, without delay, to construct and put in operation its
railroad, and that it attempted to acquire from complainant,
or persons acting under the name of complainant, the right
to cross certain lateral tracks which they had built on Front
street, in East St. Louis, but was unable to acquire the right
1S84.] Connecting Ey. Co. v. Union Ky. Co. 269
Briefs of Counsel.
so to do, and thereupon filed its petition for condemnation
thereof in the county court of St. Clair county ; denies that
the construction and operation of the railroad of the East
St. Louis Union Kailway Company over the lateral tracks of
complainant, as proposed in the location of its road, and
described in said condemnation proceedings, will render it
impracticable for complainant to carry on its business and
exercise its franchise as a railroad corporation, and will be a
substantial destruction of its property and franchises, and
denies that such operation and construction of the railroad
of defendant will work an irreparable injury to the com-
plainant.
The cause was heard on bill, answers and proofs. The
errors assigned bring before this court the question of the
correctness of the rulings of the court below in dissolving
the injunction and dismissing the bill.
Mr. E. A. Halbert, for the appellant :
The appellant's attorney believes that the cases of Central
City Horse Ry. Co. v. Fort Clark Horse By. Co. 81 111. 523,
and Lake Shore and Michigan Southern Ry. Co. v. Chicago and
Western Indiana R. R. Co. 97 111. 506, taken together and ex-
amined in the light of reason, certainly sustain the position
of appellant as presented by this record. He cites, to sustain
his views in that regard, Pierce on American Eailroad Law,
pages 154-158, and the cases cited in the notes.
Messrs. G. & G. A. Koerner, for the appellee :
It is no objection that the building of a new road will prac-
tically destroy some switch-rails and frogs, or will require
some switches to be changed. Lake Shore and Michigan
Southern Ry. Co. v. Chicago and Western Indiana R. R. Co.
97 111. 506 ; Chicago and Alton R. R. Co. v. Joliet, Lockport
and Aurora Ry. Co. 105 id. 408.
270 Connecting By. Co. v. Union Ey. Co. [Jan.
Brief for the Appellee.
The complainant in this bill seems to think that its cor-
porate grant, being anterior to that of defendant, is exclusive
in its character. By its terms it is not. But were it so ex-
pressed, the power to take the franchise upon making com-
pensation still exists. 1 Bedlielcl on Bailways, (4th ed.) page
257.
The legislature may, in all instances, determine when and
where the public necessities require additional facilities, of a
similar or analogous character, when the former grant is not
exclusive. Charles River Bridge Co. v. Warren Bridge Co. 11
Pet. 426 ; Hudson and Delaware Canal Co. v. New York and
Erie Ry. Co. 9 Paige, 323.
This court has in strong terms approved of the doctrine, to
the extent that the authority to construct a public thorough-
fare, and the exclusive right to levy and collect tolls for pass-
ing over it, conferred no exclusive right in the line of travel
which it was designed to accommodate, and that the legisla-
ture might authorize the construction of a rival thoroughfare
for the accommodation of the same line of travel, although
the effect might be not only to diminish the revenues, but
absolutely to destroy the value of the first. Board of Trus-
tees Illinois and Michigan Canal v. Chicago and Rock Island
R. R. Co. 14 111. 314.
We may refer also to the same doctrine approved in Matter
of Kerr, 42 Barb. 119; B. and L. Ry. Co. v. Salem and L.
Ry. Co. 2 Gray, 1.
The corporate franchise of one railway may be taken for
the construction of another. Richmond Ry. Co. v. Louisa Ry.
Co. 13 How. 81 ; Newcastle R. R. Co. v. P. and Ind. R. R.
Co. 3 Ind. 464.
The case at bar is one where one corporation seeks to pre-
vent the building of a rival road by enjoining it from crossing
its lateral tracks. Under the authorities cited the rival road
might greatly impair, or even utterly destroy, the franchise
of the present road, upon making compensation. City Horse
1884.] Connecting Ey. Co. v. Union Ry. Co. 271
Opinion of the Court.
Ey. Co. v. Fort Clark Horse Ry. Co. 81 111. 523, and the other
authorities cited by appellant, are strong arguments against
him.
Mr. Justice Scholfield delivered the opinion of the Court :
The purpose of the incorporation of appellant and appellee
is the same, — that of transferring cars from one railroad to
another, from the several railroads to the stock yards, and
to the elevators, mills, warehouses and ferries accessible, and
from these back again to the several railroads. They are
incorporated under the same general law, and both have the
requisite municipal authority for laying their tracks in the
street. The main track of appellee does not cross that of ap-
pellant, but it lies within a few feet of it, and extends parallel
with it, and crosses some of appellant's lateral tracks and
switches, etc., and some of the lateral tracks and switches
which it will be necessary for appellee to construct and oper-
ate will cross the main track of appellant, and, perhaps, also
some of its lateral tracks and switches. No continuous por-
tion of appellant's main track is taken and sought to be con-
demned, but crossings of and for lateral tracks and switches
are alone the subject of the taking and condemnation prayed
to be enjoined.
The evidence, when fairly considered, fails to sustain the
allegation in the bill that the construction and operation of
appellee's railway over the lateral tracks of appellant, as
proposed in the proceedings for condemnation, will render it
impracticable for appellant to carry on its business and exer-
cise its rights and franchises as a railroad corporation, and
be a substantial destruction of its property and franchise. It
does, however, show that appellant will be seriously hindered
in the operation of its tracks, switches, etc., by the opera-
tion of appellee's tracks and switches at the same time, and
that this will greatly detract from the profits of its business,
and depreciate the value of its property. In principle the
272 Connecting Ey. Co. v. Union Ey. Co. [Jan.
Opinion of the Co art.
case is simply one wherein one competing road is delayed in
the movement of its trains by stoppages rendered necessary
by crossing the tracks and switches of another, when no grant
involving a contract not to be thus delayed exists, and no
priority of right in that regard is otherwise shown. The
mere grant of the right to build a railroad between given ter-
mini creates no implied obligation by the State to not there-
after grant the right to build other railroads parallel with
it between the same termini. {Charles River Bridge Co. v.
Warren Bridge Co. 11 Pet. 420; Hudson and Delaware Canal
Co. v. New York and Erie R. R. Co. 9 Paige, 323 ; Illinois and
Michigan Canal v. Chicago and Rock Island R. R. Co. 14
111. 314.) Nor does it imply an obligation on behalf of the
State that other railroads, with their tracks and switches,
shall not thereafter be granted the right to cross the State
in a different direction, and thus pass over its tracks and
switches. {Chicago and Alton R. R. Co. v. Joliet, Lockport
and Aurora Ry. Co. 105 111. 388.) The public welfare espe-
cially requires that the business of carrying shall be open
to competition as far as possible, and no monopoly in that
regard, however limited the sphere of its operation, can be
presumed to have been intended by the legislature in the
enactment of the general law for the formation of railroad
corporations. When appellant organized as a corporation
and built its road, it was charged with the knowledge that
other companies had the right thereafter to organize and
build and operate their roads, precisely as appellee has or-
ganized and is seeking to build its road. The probability
was within reasonable contemplation, and appellant's stock-
holders acted with their eyes open, and took their chances of
this kind of competition.
In Lake Shore and Michigan Southern Ry. Co. v. Chicago
and Western Indiana R. R. Co. 97 111. 506, where a crossing
by one railroad over the switches of another was sought to
be enforced, at page 523, in speaking of the statute under
1884.] Connecting Ey. Co. v. Union Ey. Co. 273
Opinion of the Court.
which these companies organized, and the general law in
relation to eminent domain, it was said : "It seems plain,
taking these two statutes together, that the General Assem-
bly intended to leave not only the question of whether the
taking of any given property for any given purpose named in
the Eailroad act would be of such public use as to warrant
the taking thereof, upon just compensation, without the con-
sent of the owner, to be solved by the all-pervading laws of
trade and commerce, but also to leave the question of the
place and manner of such taking to be controlled upon the
same principles. They are both left to the determination of
the railroad company seeking the same, under the limitation
that full compensation therefor must be made by such cor-
poration. The legislative declaration assumes that no such
corporation can afford to incur the necessary cost in this
regard for a work that will not prove profitable, and hence
not needed for public use, or to thus take for such work prop-
erty not needed therefor, especially as property rights so
acquired, though fully paid for, can not be made available
for any other purpose without forfeiture of all title to the
same. The security against a wanton and arbitrary exercise
of this power upon mere whim or caprice, and that in all
cases the point and manner of taking the land selected will be
that least injurious to the owner and yet suited to the public
necessity, is found in the fact that such corporations will be
induced by considerations of their own best interest to select,
in making such crossings, that practical place and that prac-
tical mode which will be the least detrimental to the owner,
because the corporation so selecting is required by law to make
to the owner full compensation, and the more injurious to the
owner the place selected and the mode chosen, the greater
will be the amount of necessary compensation to be paid. "
Counsel for appellant, with seeming confidence, relies upon
the decision in Central City Horse Ry. Co. v. Fort Clark Horse
Ry. Co. 81 111. 523, and to some of the language used by the
18—108 III
274 Connecting Ey. Co. v. Union Ky. Co. [Jan.
Opinion of the Court.
judge in argument in delivering the opinion of the court in
Lake Shore and Michigan Southern Ry. Co. Y.'Clticago and
Western Indiana R. R. Co. supra. In .the first named case,
one horse railway company was seeking to appropriate and
condemn the central part of the track and fixtures, or sub-
stantially that, of a rival horse railway company, leaving the
ends unaffected, and it was held this was a substantial de-
struction of the railway, and could not, therefore, be tolerated.
But we have seen, here, there is no appropriation of, or offer
to condemn, any. continuous part of appellant's main track,
but the purpose is merely to take and condemn crossings of
and for lateral tracks and switches, — the very thing that was
held allowable in the last named case. The language in the
opinion in the last named case, to which reference is made,
is this : "To warrant the taking of the property of one party
already appropriated to a public use, and placing it wholly or
in part in the hands of another party for a public use, it is
essential that the new use be a different use, and also that
the change from the present use to the new use shall be for
the benefit of the public." This was merely introductory
to the main discussion, and, as is therein shown, not vital to
the question at issue. Still, regarding it as an authoritative
enunciation of a legal principle, it is just as obvious here as
it was there, that the use of a railroad track for the mere
purpose of crossing it is not the same as the use of it for the
transportation of trains from one point to another along its
line. This use takes no property from one party to give to
another, but gives the one simply a limited easement in the
property of the other, to be enjoyed in conjunction with the
equal right of user of the other.
We see no cause to disturb the decree below. Legal dam-
ages, assessed as provided by law, will afford appellant an
adequate remedy for all it will suffer by the acts of appellee.
There is no ground for an injunction.
The decree is affirmed. ^^ <#)w^_
1SS4.1 Haworth v. Taylor.
(o
Syllabus.
David B. Haworth
v.
Abijah Taylor.
Filed at Springfield June 18, 1883 — Rehearing denied January Term, 1884.
1. Kecokding.law — deed notice from time of filing for record. The
statute makes the filing of a deed for record the same as the recording of it,
as respects notice to subsequent purchaser, etc.
2. But where a deed for land is left by the grantee with the recorder, and
the fees for recording paid, with a direction not to record the same until
ordered to do so, as shown by a memorandum on the entry book, and before
orders to record the same another deed from the same grantor is filed and
recorded, such first deed will not be held to have been filed for record, within
the meaning of the statute, before the second deed, and the grantee in the
latter will not be affected with constructive notice of the prior deed from the
records of deeds.
3. Notice — of title, by tenant's possession. The possession of land by
a tenant under a written lease, before the commencement of the term, is
constructive notice of whatever title the landlord may have to the same at
the time of a subsequent convej^ance tp another.
4. A husband leased land of his wife on August 22, 1865, to a tenant for
five years, the term to commence on March 1, 1866, under which lease the
tenant took possession in September or October, 1885. The wife, after a
decree of divorce, in the exchange of lands conveyed the premises to the
husband on November 13, 1865, arid on December 26, 1868, she conveyed
the same to one H., whose deed was first recorded: Held, that the posses-
sion of the tenant, at the date of the last deed from the wife, was notice to
the grantee therein of the husband's title under his unrecorded deed from
his former wife.
5. Redemption — when allowed in equity after statutory time has passed.
A debtor's quarter- section of land was sold on execution for $580, a sum less
than its value, and a certificate of purchase given and duly recorded. It
afterwards appeared that at the same time other real estate of the debtor was
sold for $5, the yearly rental value of which was over $500, and a certificate
thereof made out, but not recorded until more than five years after the sale,
when a sheriff's deed was taken on it by an assignee. The return on the
execution showed a satisfaction of the execution by the sale of the first named
lands, which were described, there being no mention made in the return of
the sale of the other tract: Held, that under the peculiar circumstances the
judgment debtor had a right to a decree enabling him to redeem from such
276 Hawokth v. Taylor. [Jan.
Statement of the case.
sale the land sold for $5, of which sale the record failed to afford him notice
in time to redeem under the statute.
6. Purchaser — of equitable interest, not protected. A purchaser of a
certificate of purchase of land sold at a judicial sale takes only an equitable
interest, subject to all the equities of the former owner or the debtor, and
occupies no better position than the plaintiff in the execution, of whom he
takes the assignment.
7. Chancery jurisdiction— to set aside cloud on title held by defend-
ant in possession. A court of equity may well entertain jurisdiction of a
bill by a party out of the possession of land against one in its possession to
remove a cloud upon title, where it also seeks to redeem from a sale on exe-
cution for gross irregularities and fraudulent concealment of the sale.
8. Chancery — rents and profits recoverable under general prayer.
"Where a bill in chancery makes and presents a proper case for an account of
the rents and profits of land against the defendant, such account may prop-
erly be taken under the general prayer for relief.
9. Mortgage — by absolute deed does not deprive party of right to re-
cover rents and profits. A deed absolute on its face, given only to secure
the payment of money, does not deprive the grantor of the right to recover
for rents and profits of the land between the date of such deed and a recon-
veyance to him.
Writ of Error to the Circuit Court of Tazewell county ;
the Hon. John Burns,. Judge, presiding.
This was a bill in chancery, brought by Abijah Taylor,
against David B. Haworth, to have set aside a certain deed
from Mary E. Taylor, the former wife of Taylor, to Haworth,
and also a sheriff's sale and deed of land claimed as belong-
ing to Taylor, or for leave to redeem from such sheriff's sale.
The court below decreed in favor of the complainant, and the
defendant, Haworth, appealed to this court.
The prominent facts appearing from the evidence are, that
on September 27, 1872, Taylor commenced a suit in eject-
ment in the circuit court of Mason county against Haworth,
to recover possession of the south half of the north-east
quarter, and the north half of the south-east quarter of sec-
tion 24, township 21, range 7, in Mason county. The cause
was tried at the November term, 1872, resulting in a verdict
1884.] Haworth v. Taylor. 277
Statement of the case.
for the defendant. A new trial, for cause, was granted. The
venue was afterwards changed to Tazewell county, where, at
the May term, 1874, the cause was again tried by the court
without a jury, the finding again being for the defendant.
At the May term, 1875,* within a year, a new trial was
awarded to Taylor under the statute. At the September
term, 1875, Taylor filed the bill in this case. Ha worth's
claim of title in the ejectment suit having been under said
deed and sheriff's sale, the bill also asked that Haworth be
enjoined from further proceeding in the ejectment suit until
after the final hearing.
It appears that on the 22d day of August, 1865, Mary E.
Taylor, the wife of Abijah Taylor, was the owner of the lands
in controversy ; that they were then residing in Indianapolis,
Indiana, and that on that day Taylor, the husband, leased
said lands to one D. B. Johnson, by written lease, for a term
of five years, beginning March 1, 1S66, but Johnson went
into possession in September or October, 1865, and thence
continued in possession until in March, IS 67, when Haworth
took possession. On November 11, 1S65, Mrs. Taylor ob-
tained a divorce in Indianapolis from her husband, Abijah
Taylor, and a decree for $7000 alimony. There were five
children living, the custody of whom was decreed to Mrs.
Taylor. On November 13, 1865, two days after the decree
of divorce, Abijah Taylor conveyed by deed to Mrs. Taylor
some property in Indianapolis, being the house in which they
had resided, and some land in Champaign county, Illinois,
and Mrs. Taylor conveyed to Abijah Taylor the lands in con-
troversy in this case, the conveyances being to the respective
grantees for life, with remainder to their five children, and
on the same clay of the conveyances Mrs. Taylor receipted
on the record of the court in Indianapolis the decree for
alimony in full. This deed from Mary E. Taylor to Abijah
Taylor was filed for record in the recorder's office of Mason
county, where the lands were situated, June 15, 1866, and
278 Haworth v. Taylor. [Jan.
Statement of the case.
the recording fees paid, but the deed was not spread upon
the record until long afterward, and after the making and
recording of the deed following. On December 26, 1866,
Mrs. Taylor made a warranty deed to Haworth, for the con-
sideration of $3000, of these same lands in controversy, which
she had conveyed previously to Abijah Taylor. Haworth
resided in Indiana, and the sale to him was negotiated by
the attorney for Mrs. Taylor in her divorce suit, which attor-
ney drew the deed from Mrs. Taylor to Abijah Taylor, and
was brother-in-law to Haworth. On the 19fch day of Novem-
ber, 1866, Mrs. Taylor recovered a judgment against Abijah
Taylor for $526.58, and costs, in the Mason county circuit
court, upon which an execution was issued January 18, 1867,
directed to the sheriff of Mason county to execute. On August
6, 1867, the sheriff returned the execution, with the following
indorsements thereon :
"I hereby certify that the above described property, levied
on January 26, 1867, has been sold by me this 20th clay of
March, 1867, in pursuance of law and due notice, for the sum
of $5 SO, amount in full of debt, interest and cost. Property
purchased by plaintiff. jAg_ ^ ^^ ^.^
"I hereby return the within execution and fee bill, satis-
fied in full by sale of property levied on, to-wit : S.W. qr.
of S.W. qr. Sec. 24, T. 21, K. 7, for $140.00; S.E. qr. of
S.W. qr. Sec. 24, T. 21, K. 7, for $150.00; N.E. qr. of
S.W. qr. Sec. 24, T. 21, K. 7, for $145.00; S.E. qr. of N.W.
qr. Sec. 24, T. 21, E. 7, for $145.00; all property purchased
by plaintiff, all cost paid by plaintiff. Cost paid to clerk,
and my fees retained August 6, 1867.
Jas. L. Hastings, Sheriff."
A certificate of purchase upon the sale was given to the
plaintiff in execution, that the tracts of land above described
were purchased by her under the execution for $5S0, on
18S4-.1 Haworth v. Taylor. 279
Statement of the case.
March 20, 1867, which certificate was duly recorded. The
above described tracts of land embrace none of the lands in
controversy.
There was indorsed on the execution a statement of levy of
the execution on January 26, 1867, on the above described
and two other forty- acre tracts of land, and also the life
interest of Abijah Taylor in the lands in controversy, and of
a further levy on March 8, 1867, on the leasehold interest of
Taylor in some five hundred and twenty acres of other lands.
At the trial of the ejectment suit in Tazewell county, in May,
1874, the court permitted an amendment of the return on the
execution by adding after the list of tracts described therein
as sold, "also the life interest of Abijah Taylor in the follow-
ing described tracts of land," describing the four fortys of the
land in controversy, as sold for five dollars, — two for one dol-
lar each, and the two others for one dollar and fifty cents each.
At the first trial in the ejectment suit in Mason county,
there was produced in evidence by Haworth a certificate of
purchase signed by the sheriff, bearing date March 20, 1867,
stating that the lands in controversy were sold under the exe-
cution on that day to Mary E. Taylor for five dollars, and a
sheriff's deed for the lands to Haworth, as assignee of this
certificate of purchase, made on October 8, 1872. The cer-
tificate of purchase was then for the first time filed for record
in the recorder's office of Mason county on that day.
In regard to this certificate of purchase the sheriff who
sold the lands testified, that both the certificates of purchase
were made out and dated at the same time, and that the
attorney for Mrs. Taylor at the sale said he did not want
the certificate of purchase of the lands in controversy unless
he ordered it — he wanted to save expense : that afterward the
attorney told witness he did not know as they would want the
last mentioned certificate of purchase, and witness then filed
it away with his old papers until he went out of office ; that
the next time he was spoken to about it was in 1870 or 1871,
280 Haworth v. Taylor. [Jan.
Brief for the Plaintiff in Error.
when said attorney asked him if he could make out a certifi-
cate of purchase for the lands in controversy, as he had never
received it ; that witness said it was not necessary to make
one out, as he had one which was his if he wanted it. The
attorney said he had use for it, and witness sent to him the
certificate by mail. This attorney testified in the case that
he received the collection from that attorney of Mrs. Taylor
in Indiana, before spoken of, and under whose directions he
acted. The uncontradicted testimony of Abijah Taylor was
that he left and went to New York in June, 1866, and returned
in the early part of 1872 ; that he first heard that this land
had been sold by the sheriff after his return ; that he was not
back in this State or Indiana between 1866 and 1872.
Mr. C. A. Koberts, and Mr. 0. H. Wright, for the plaintiff
in error :
Bill to quiet title did not lie, as the defendant was in the
actual possession. Harding v. Jones, 86 111. 313 ; Oakley v.
Hurlbut, 100-id. 204.
But the bill is sought to be sustained on the ground of
fraud. "To make a deed fraudulent and void, or voidable,
all the parties thereto must participate in the fraud." Prevo
v. Waltes, 4 Scam. 35 ; Ewing v. Rankle, 20 111. 448 ; Myers
v. Kinsey, 26 id. 38; Maxell v. Williamson, 35 id. 529.
We understand the rule to be settled in this State, that in
order to impeach a conveyance for fraud both vendor and'
vendee must be shown to have intended to commit the fraud
before the deed can be avoided. Hatch v. Jordan, 74 111. 414;
Gridley v. Bingham, 51 id. 153.
It is also a well settled rule that fraud can not be presumed,
but must be proven. Story's Eq. Jur. sec. 190; Hatch v.
Jordan, 74 111. 414.
The entry of the deed in this case being not within either
the letter or spirit of the Becording law, was no notice to a
subsequent purchaser. Story's Eq. Jur. sec. 404.
1S84.] Haworth v. Taylor. 281
Brief for the Defendant in Error.
Evidence of notice of a prior unrecorded deed should leave
no reasonable doubt of notice. McVey v. McQuality, 97
111. 93.
When possession is taken and held without any claim of
title, the continued possession after the acquisition of title is
no notice to others of such title. Emmons v. Murray, 16
N. H. 39S ; Fair v. Stevenot, 29 Cal. 486.
The statute requiring a sheriff to file a certificate of sale
for record is directory, and a failure to do this does not affect
the validity of the sale. Stewart v. Croes, 5 Gilm. 442 ; Jack-
son v. Young, 5 Cow. 269.
Between the defendant in execution and a bona fide holder
of the title, acquired through a sheriff's sale, all that it is
necessary to show is a valid judgment, execution, levy, and
deed; and all else, when these are shown, is between the
parties to the execution and the officer making the sale.
Wheat v. Sexton, 4 Whart. 503 ; Landes v. Brant, 10 How.
371 ; Taylor v. Thompson, 15 Pet. 399 ; Remington v. LintJii-
cuvi, 14 id. 84; Shepherd v. Rowe, 14 Wend. 600; Kinney v.
Knoebel, 47 111. 417.
Many of the most respectable authorities go so far as to
say, that if no levy or return is made, or notice of sale given,
it would not affect a bona fide purchaser. Draper v. Bryson,
17 Mo. 70 ; Brooks v. Rooney, 11 Ga. 423 ; Smith v. Hill, 22
Barb. 655. And see, Wood v. Colvin, 5 Hill, (N. Y.) 238 ;
Tullis v. Brawley, 3 Minn. 277; Fulsome v. Carl, 5 id. 333.
Mr. E. A. Wallace, and Mr. W. H. Campbell, for the de-
fendant in error :
The return to the execution shows a full satisfaction by
the sale of one hundred and sixty acres of Taylor's land, and
of a certificate of purchase duly issued therefor and recorded,
but no mention is made of the land in controversy, and no
certificate of purchase for it is taken out, and none filed for
record. On the contrary, the records of the county showed
282 Haworth v. Taylor. [Jan.
Opinion of the Court.
full satisfaction of the judgment and a release of the present
lands.
The tenant's possession was notice of Taylor's rights at
the time of the making and delivery of the second deed, even
though he had no title at the date of the lease.
Although inadequacy of consideration alone is not sufficient
to set aside a judicial sale, it may well be considered with
other irregularities and objections, and may turn the scale.
Dutcher et al. v. Leake et al. 44 111. 400 ; Dickerman v. Bur-
gess, 20 id. 266; Thomas v. Hebenstreit, 68 id. 118.
As to the effect, under the facts in this case, of the sheriff's
sale and deed, see the cases last cited.
Taylor was, in law, in possession when he filed his bill.
He was in possession, by his tenant, when Haworth got the
same without consent, by collusion with Taylor's tenant.
Hardin v. Jones, 86 111. 373; Comstock v. Henneberry, 66 id.
212.
Such a bill lies to set aside deeds obtained by fraud. Ken-
nedy v. Northrup, 15 111. 149.
But the scope of this bill is not alone to remove the clouds
on title, but is also a bill to redeem. Where a court of equity
once obtains jurisdiction on any ground, it will retain the
same until it has adjusted all the rights of the parties, and
this it will ever do under the prayer for general relief. Isaacs
v. Steel, 3 Scam. 97.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
As respects the deed in question from Mary E. Taylor to
Haworth, the first ground made for its invalidation is, that
Haworth had constructive notice by record of Mrs. Taylor's
prior conveyance of the same lands to Abijah Taylor, from
the fact of Taylor's deed having been filed for record previ-
ously to the making of the deed to Haworth. The statute
makes the filing of a deed for record the same as the record-
1884.] Haworth v. Taylor. 283
Opinion of the Court.
ing of it, as respects notice, and the only question upon this
point is, whether Taylor's deed was filed for record, within
the meaning of the statute, before the making and recording
of Haworth's deed.
Taylor's deed was formally filed for record June 15, 1866,
and the recorder's fees paid, but was not recorded until some
time in 1872. Haworth's deed was made December 26, 1866,
and recorded on January 29, 1867. The recorder gave testi-
mony that Taylor wanted him to file the deed for record, and
paid the recording fees ; that Taylor said he was not particu-
lar about it being recorded right away ; that he suspected his
wife would make conveyance to some other person for the
same property, and in case she did he wanted this deed put
on record immediately, and wanted witness to keep watch ;
that witness put the deed in the "dead-head box," and kept
watch for some time, but at last forgot all about it, — ;the
"dead-head box" being where deeds are thrown that are not
paid for, and are not to be recorded. In the entry book
of the recorder's office there appears an entry of the names of
the parties to the deed, the filing of the deed June 15, 1866,
the fee paid, and under the heading, "Eemarks, " the entry,
"Not to be recorded until ordered." We take the recorder's
entry in the entry book as the evidence of the terms upon
which the deed was left for record, and they were, that it
was not to be recorded until ordered, and in consequence
thereof the deed was not recorded until after the making and
recording of the deed to Haworth. The statute intends, by
the filing of a deed for record, the leaving of the deed for
record in due course. This deed to Taylor was not so left,
but left to be recorded only when ordered, and there not hav-
ing been any subsequent order for its record until after the
deed to Haworth was made and recorded, we are of opinion
that Taylor's deed was not filed for record, within the mean-
ing of the statute, before the deed to Haworth, and that the
latter, at the time of taking his conveyance, was not affected
284: Ha worth v. Taylor. [Jan.
Opinion of the Court.
with constructive notice of Taylor's deed from the filing of
the same for record.
Another ground for impeaching Haworth's deed is, that at
the time he took it he had constructive notice of the existence
of Taylor's previous deed, from the fact of Taylor's possession
of the land. At that time Taylor was in the actual posses-
sion of the land by his tenant, Johnson, under a written lease
made to the latter by Taylor on August 22, 1865, for a term of
five years, commencing March 1, 1866. We think this was
constructive notice, not only of Johnson's interest in the land,
but of Taylor's as well. The inquiry upon which one would
be put in such a case as to the occupant's right would have
discovered that Johnson was but a tenant, which would have
referred the inquirer further to the landlord as to his right,
as it is not to be expected that a tenant would know what
was the title of his landlord. Pittman v. Gaty, 5 Gilm. 186;
Franz v. Orton, 75 111. 100; Smith v. Heirs of Jackson, 76 id.
254; Whitaker v. Miller, 83 id. 381; 3 Barbour's Ch. 316.
As at the date of the lease Taylor was not the owner of
the land, but acquired title subsequently, on November 13,
1865, it is contended that the notice from the tenant's occu-
pancy was notice only of Taylor's (the landlord's) rights at
the time of the making of the lease, and not of his rights at
the time of Haworth's deed, December 26, 1866. We do not
concur in this view, although the authority cited (Emmons v.
Murray, 16 N. H. 398,) lends somewhat of countenance to it.
We regard the doctrine, as derived from the decisions of this
court, to be, that where one purchases land of which another
is at the time in the actual, open and visible possession, such
possession is constructive notice to the purchaser of all rights
whatever of the possessor in the land at the time of the pur-
chase.
We find, then, the claim of title under Haworth's deed to
be invalid, from the fact that at the time of taking the deed
Taylor was in the actual possession of the land by his tenant,
1SS4.] Haworth v. Taylor. 285
Opinion of the Court.
which constituted notice to Haworth of Taylor's right to the
land under his prior unrecorded deed. The reason given for
the deed to Haworth is, that the sole consideration of the deed
from Mrs. Taylor to Ahijah Taylor was an agreement on his
part to discharge the liens which were upon the Indianapolis
property he conveyed to Mrs. Taylor ; that Taylor failed to
discharge the liens, and thereupon Mrs. Taylor, to save her
Indianapolis property, sold and conveyed the lands which she
had previously deeded to Taylor, to Haworth, for $3000 in
cash, out of which she discharged and paid off said liens. Of
course this was no legal justification for making the deed to
Haworth.
In regard to Haworth's claim of title under the sheriff's
sale, there are circumstances of a remarkable character
attending that sale. In the first place there had been sold
under the execution, and bid off by the plaintiff therein, one
hundred and sixty acres of other lands for $580, which lands
may be supposed to have been worth very much more than
that sum. Why was not, then, the remaining insignificant
sum of five dollars added to and included in that bid and sale,
instead of going on afterward and selling the debtor's life
interest in the lands in controversy for the sum of five dol-
lars, the yearly rental value of which interest the decree in
this case finds to have been $560 ? The two sales were made
at one time, — March 20, 1867. Why should there have been
two certificates of purchase made out, one for the other lands
and another for the lands in controversy, and the former
one placed upon record and the latter suppressed from the
record? Where land is sold under execution, the statute
requires the sheriff, within ten days from the sale, to file in
the office of the recorder of the county in which the property
is situated a certificate of the purchase, which shall be
recorded by the recorder. In Thomas v. Hebenstreit, 68 111.
118, it was said the object, no doubt, of this provision of the
statute was, that all persons interested in the title to the
2S6 Haworth v. Taylor. [Jan.
Opinion of the Court.
land might, on inspection of the record, learn, among other
things, when the land was sold, when redemption expired,
etc. The certificate of purchase here for the other lands was
filed for record and recorded August 6, 1867, (the time of the
return of the execution,) but the certificate of purchase for
the lands in controversy was not filed for record until August
8, 1875, — more than five years after the sale. On August 6,
1867, the sheriff made return of the execution with his in-
dorsement thereon that he returned the execution, and fee
bill satisfied in full by sale of property levied on, and naming
it as the other lands than those in controversy, and stating
the amount at which each tract sold, being in the aggregate
$580, and the certificate of purchase filed for record on that
clay stated that those tracts were sold to the plaintiff in exe-
cution for $580, — the sum which the return said satisfied the
execution and fee bill in full. Thus the public records in-
formed Taylor that the execution had been satisfied in full
by the sale of other lands than those in controversy, and
misled him to understand that none of the lands in contro-
versy had been sold. He was in ignorance of, and had no
reason to suspect from the records, that these lands had been
sold, but had reason therefrom to think the contrary. The
practices which were adopted here were excellently well cal-
culated to keep from Taylor knowledge of the fact of the
sale of these lands under the execution. We think he is en-
titled to say that they did so, and especially in the case of
such gross inadequacy of price ; that they were the cause of
the failure to redeem from the sale within the time given for
that purpose by the statute, and therefore that in equity he
should be permitted to redeem now, after the expiration of the
statutory period for redemption. As to gross inadequacy of
price lending aggravation to any irregularities in a sale, see
Dutcher v. Leake, 44 111. 400 ; Thomas v. Hebenstreit, 68 id.
118. The bill asks, and makes offer, to redeem, and the
decree allows redemption, in which we find no error.
18S4.] Haworth v. Taylor. 287
Opinion of the Court.
A point is made as to Haworth being an innocent pur-
chaser. He purchased only an equitable interest in buying
the certificate of purchase, and took subject to the outstand-
ing equities of Taylor, and occupies no better position than
that of the plaintiff in the execution.
Objection is made to the jurisdiction to entertain the bill,
because Haworth was in possession at the time of the filing
of the bill, and that under decisions of this court a bill to
remove a cloud upon title will not lie where the defendant is
in possession. We think it enough to say that the bill being,
in one of its aspects, to redeem, the bill in such respect was
well brought, irrespective of possession by the defendant.
As a bill to redeem, objection is taken to it on account of
the delay in the filing of the bill. Under all the circum-
stances of the case we do not consider that there can be any
just imputation of laches to the complainant in not sooner
riling the bill.
The decree adjudged a recovery against the defendant of
$4707 for the balance of the rents and profits received by
him from the land up to April 30, 18S2. It is objected to
this, that there was no prayer for an account in the bill, and
that the remedy for the recovery of rents and profits should
have been sought in a court of law. The bill made a proper
case for an account, and we are of opinion it might properly
be taken under the general prayer for relief, and that in
order to the adjustment of all the rights of the parties with
respect to the subject matter of the suit, it was proper to
take the account in this case. It appears that on March 27,
1874, Taylor made a quitclaim deed of his interest in the
land to Susan Welch, and that on -September 23, 1881, she
reoonveyed to Taylor, and it is claimed that during the time
intermediate those dates Taylor is not entitled to recover for
rents and profits. The evidence shows this deed from Taylor
was but a mortgage, it being a mere security for a debt, and
as mortgagor, Taylor was entitled to the rents and profits of
288 C. & A. E. K. Co. v. May, Admx. [Jan.
Syllabus.
the land, the condition of the mortgage being unbroken, and
no claim of rents by the mortgagee.
It is claimed the amount allowed Taylor is too great. The
value of the rents and profits may have been estimated too
high, but whatever error there may have been in that respect
was more than counterbalanced by the allowance of a deduc-
tion of the amount of the payments made by Mrs. Taylor in
the discharge of liens upon the Indianapolis property, said
liens being the ones hereinbefore mentioned in stating the
reason given for Mrs. Taylor's making the deed she did to
Haworth. The propriety of the allowance of this deduction,
at least under the pleadings in the case, does not satisfactorily
appear to us. We are inclined to think that because of this
allowance any cause of complaint in respect of the amount
decreed to Taylor is rather with Taylor than the defendant.
The decree of the circuit court must be affirmed.
Decree affirmed.
Walker and Scott, JJ. : We hold that the Statute of
Limitations barred all rents and profits accrued more than
five years before the date of filing the bill. See Harding v.
Larkin, 41 111. 413, which announces this rule.
The Chicago and Alton Bailroad Company
v.
Caroline May, Admx.
Filed at Springfield June 14, 1883 — Rehearing denied January Term, 1884.
1. Negligence — causing death — evidence as to support of family,
proper. In an action by an administrator against a railway corporation, to
recover damages for negligently and wrongfully causing the death of the
intestate, evidence that the deceased in his lifetime supported the plaintiff
(his widow) and her children, is not only admissible, but highly proper, if
not indispensably necessary.
1884.] C. & A. E. E. Co. v. May, Admx. 2S9
Syllabus.
2. Error— in some instructions, when, as a whole, are most favorable
to the objector. Where the instructions, taken as a series, taking those on
both sides, state the law of the case more favorably to the defendant than
the plaintiff, and more favorably to the defendant than the law warrants, a
reversal will not be had on the appeal of the defendant, even if one or more of
the plaintiff's instructions, considered alone, are probably subject to criticism.
3. Master and servant — who is a fellow-servant of a common master.
One servant of a corporation, to whom is delegated the power of hiring and
discharging other servants, and in whom the corporation vests the sole con-
trol and direction of such other servants in and about the work which they
may be ordinarily required to do, is, as to such servants whom he so hires,
discharges and controls, the representative of the master when exercising
such power or control, and is not a fellow-servant, nor is he in the same line
of employment as the servants he so controls.
4. Same — liability for negligence of one servant injuring another. The
mere fact that one of a number of servants who are in the habit of working
together in the same line of employment for a common master, has power to
control and direct the actions of the others with respect to such employment,
will not of itself render the master liable for the negligence of the governing
servant, resulting in an injury to one of the others, without regard to other
circumstances. Each case must depend upon its own circumstances.
5. If the negligence complained of consists of some act done or omitted
by the servant having such authority, which relates to his duty as a co-
laborer with those under his control, and which might as readily happen with
one of them having no such authority, the common master will not be liable.
6. But where the negligent act arises out of and is the direct result of the
exercise of the authority conferred upon him by the master over his co-
laborers, the master will be liable. In such case the governing servant is not
the fellow -servant of those under his charge with respect to the exercise of
such powers.
7. Same — when command of servant is that of his master. Where a
corporation confers authority upon one of its employees to take charge and
control of a gang of men in carrying on some particular branch of its busi-
ness, such employee, in governing and directing the movements of the men
under his charge with respect to that branch of the business, is the direct
representative of the corporation itself, and all commands given by him
within the scope of his authority are in law the commands of the corpora-
tion; and the fact that he may have an immediate superior between him and
the company makes no difference in this respect.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the Circuit Court of
McLean county ; the Hon. Owen T. Eeeves, Judge, presiding.
19—108 III.
290 C. & A. E. E. Co. v. May, Admx. [Jan.
Brief for the Appellant.
Messrs. Williams, Burr & Capen, for the appellant :
The admission of evidence tending to show the poverty of
the deceased was error, the only question in this regard being
what is the actual pecuniary damage resulting to the widow
and next of kin. Chicago and Northwestern R. R. Co. v. Mo-
randa, 93 111. 302; Chicago v. O'Brennan, 65 id. 160; Pitts-
burg, Ft. Wayne and Chicago Ry. Co. v. Powers, 74 id. 341.
The common master is not responsible for an injury to one
employee caused by the negligence of a fellow-employee in
the same line of employment. Chicago and Alton R. R. Co.
v. Murphy, 53 111. 336 ; Valtez v. Ohio and Mississippi R. R.
Co. 85 id. 500 ; Illinois Central R. R. Co. v. Keen, 72 id. 512 ;
Homier v. Illinois Central R. R. Co. 15 id. 550; Illinois Cen-
tral R. R. Co. v. Cox, 21 id. 20; Lalor v. Chicago, Burlington
and Quincy R. R. Co. 52 id. 401 ; Chicago and Alton R. R.
Co. v. Keefe, 47 id. 108.
Under the undisputed facts of this case, Fricke and the
deceased were fellow-servants ; the former was, in no sense,
the alter ego of the master, so as to render it liable for his
mere personal negligence. Hart v. Peters, 14 Wis. 542 ; State
v. Malster, 26 Md. 176; Crispin v. Babbitt, 81 N. Y. 516;
Howclls v. Bandore Steel Co. 11 Moak, 153; Peterson v.
W. C. and M. Co. 50 Iowa, 673; Corcoran v. Holbrook, 59
N. Y. 517; Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432;
Delaware and Hudson Canal Co. v. Carroll, 89 id. 374 ;
McAndrews v. Burns, 39 N. J. 117; Beanlieu v. Portland Co.
48 Maine, 291 ; Feltham v. England, L. E. 2 Q. B. 33 ; Blake
v. M. C. R. R. Co. 70 Maine, 60 ; K. P. Ry. Co. v. Salmon,
11 Kan. 83; Murphy v. Smith, 115 E. C. L. 361; Hard,
Admr. v. V. and C. R. R. Co. 32 Vt. 472; Wigmore v. Jay, 5
Exch. 354; Gallagher v. Piper, 111 E. C. L. 668; William
v. Carlter, 52 Mo. 372 ; Albro v. Agawam Canal Co. 6 Cush.
75; Lawler v. A. R. R. Co. 62 Maine, 463; Marshall v.
Schrieher, 63 Mo. 308 ; O'Connell v. Baltimore and Ohio R. R.
Co. 20 Md. 21 ; Schauch v. N. R. R. Co. 25 id. 462; O'Connor
1884.] C. & A. K. E. Co. v. May, Admx. 291
Brief for the Appellee.
v. Roberts, 120 Mass. 227; Zeigler v. Day, 123 id. 152; Wil-
son v. Merry, L. E. 1 H. L. 321.
No distinction as to the liability of the common master
arises from the different grades or ranks of the servants
employed. See all the above cases, and, also, Faulkner v
E. R. R. Co. 49 Barb.^324; Wegerv. Pennsylvania R. R. Co
55 Pa. 460; Sherman v. R. and S. R. R. Co. 17 N. Y. 153
Wright v. New York Central R. R. Co. 25. id. 562; Searle v
Lindsay, 103 E. C. L. 429; Collier v. Steinhart, 51 Cal. 116
Summersell v. Fish, 117 Mass. 312 ; Holden v. Fitchburg R. R
Co. 129 id. 268; Cooley on Torts, 544, 561-563.
It would seem that the law could go no further than to
hold the corporation liable for the acts and negligence of the
officer exercising the powers and authority of general super-
intendent. Cooley on Torts, 562 ; Wharton on Negligence,
sees. 229, 240, 241 ; Moak's Underhill on Torts, 50.
When the facts are not controverted, the question as to
what is a fellow-servant is a pure question of law. This is
elementary. Crispin v. Babbitt, 81 N. Y. 516; Marshall v.
Schrieker, 63 Mo. 308; Albro v. Agawam Canal Co. 6 Cush.
75 ; Farwell v. B. and W. R. R. Co. 4 Mete. 49.
Messrs. Fifer & Phillips, and Mr. Wm. E. Hughes, for
the appellee :
The question what were Fricke's powers, and how far he
stood in the company's place and represented it to the men,
is one of fact only, that is conclusively settled by the verdict.
Mullen v. Steamship Co. 78 Pa. St. 25 ; Lehigh Valley Coal
Co. v. Jones, 86 id. 432 ; Delaware and Hudson Canal Co. v.
Carroll, 89 id. 374; Toledo, Wabash and Western Ry. Co. v.
Moore, 77 111. 217 ; Chicago, Burlington and Quincy R. R. Co.
v. Gregory, 58 id. 284.
There was no error in proving who May's family were, and
that in his lifetime he supported them. Chicago and North-
ivestem R. R. Co. v. Moranda, 93 111. 302.
292 C. & A. E. E. Co. v. May, Admx. [Jan.
Brief for the Appellee.
When the master gives over the whole charge of his busi-
ness to another, the person to whom such power is delegated
stands in the master's place to all subordinates, and his neg-
ligence is chargeable to the master. Wood's Law of Master
and Servant, p. 764, sec. 390.
The master is liable for an injury to a servant resulting
from the orders of a superintendent or other employee or
agent having the supervision of the work, and power to em-
ploy, direct and discharge the laborers. Lalor v. Chicago,
Burlington and Quincy R. R. Co. 52 111. 401 ; Gormly v. Vul-
can Iron Works, 61 Mo. 492.
Negligence by a representative of the master, arising in the
form of improper orders and directions given about the work
and in the control of operatives, will render the master liable.
Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 111.
401 ; Chicago, Burlington and Quincy R. R. Co. v. McLallen,
S4 id. 116; Dowling v. Allen, 74 Mo. 13; Railroad Co. v.
Fort, 17 Wall. 553 ; Chicago Ry. Co. v. Bayfield, 37 Mich.
205 ; Frost v. Union Pacific Ry. Co. 11 Am. L. E. 101 ; Mann
v. Oriental Print Works, 11 E. I. 153; Keegan v. Cavanaugh,
62 Mo. 230; Borea Stone Co. v. Krafts, 31 Ohio St. 287;
Murphy v. Smith, 115 E. C. L. 361; Crispin v. Babbitt, 81
N. Y. 516; Thompson on Negligence, p. 975, sec. 5; Mullen
v. Steamship Co. 78 Pa. St. 25 ; Corcoran v. Holbrook, 59
N. Y. 517 ; Laning v. New York Central R. R. Co. 49 id. 521 ;
Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; L. and N.
R. R. Co. v. Collins, 2 Duvall, 114; Malone v. Hathaway, 64
N. Y. 5 ; Shearman & Eedfield on Negligence, (3d ed.) sees.
102, 103; Wharton on Negligence, sec. 229; 2 Thompson on
Negligence, pp. 1028, 1031, sees. 34, 35; Cooley on Torts,
562.
The question whether servants are in the same line of
employment is properly left to the jury. 'Toledo, Wabash and
Western Ry. Co. v. Moore, 77 111. 217; Chicago, Burlington
and Quincy R. R. Co. v. Gregory, 58 id. 284.
1884.] C. & A. E. E. Co. v. May, Admx. 293
Opinion of the Court.
Mr. Justice Mulkey delivered the opinion of the Court :
This action was brought in the McLean circuit court, by
Caroline May, the appellee, as administratrix of her late hus-
band, Christian May, against the Chicago and Alton Eailroad
Company, for negligently and wrongfully causing his death.
There was a trial upon the merits in the circuit court, result-
ing in a judgment for the plaintiff for $3250, which, on
appeal to the Appellate Court for the Third District, was
affirmed, and the company brings the case here for review.
In view of the legal questions presented by the record and
discussed by counsel, we deem it proper to state the circum-
stances immediately connected with the death of the deceased
with some particularity. They are in substance as follows :
The deceased, at the time of his death, was one of a number
of hands in the employment of the railroad company in a
lumber yard connected-with its work shops, at Bloomington,
under the immediate control and charge of one Frederick
Fricke, who was also in the employment of the company, as
foreman of the lumber yard. Immediately before the death
of May, we find Fricke, together with a squad of these hands,
including the deceased, engaged in removing a lot of lumber
from the yard to the car shops. The lumber in question con-
sisted of a pile of heavy oak plank, some sixteen feet long.
For the purpose of removal it had already been placed upon
a small, light car, some six or eight feet long, called a "rubble
car, " which was used in handling lumber in the yard and in
removing it to the shops. The lumber, as well as the car,
was at the time sheeted with ice and snow. The car thus
loaded stood on the track north of the shops, and immedi-
ately south of it, on the same track, stood a large box car
which had to be got out of the way before the lumber could
be run down into the shops. To get this car out of the way
it was necessary that both cars should be pushed some dis-
tance north, beyond a switch, so the box car could be switched
294 C. & A. E. E. Co. v. May, Admx. [Jan.
Opinion of the Court.
off to one side, and by that means let the rubble car, so
loaded, pass back south into the shops. To accomplish this
object Fricke ordered the men to push the box car against
the rubble car, which shoved the lumber so far over on the
north end of it that the small car, thus loaded, would have
tipped up and thrown the lumber out, but for the fact the
bumper of the box car held it down. The two cars were
pushed in this manner till they passed the switch, when
Fricke ordered the men to leave the small car where it was,
and push the large one south, out of the way. Two of the
men, Grenz and Schmekel, went to the north end of the
planks, as they lay projected on the rubble car, and held
them up, while the other hands commenced pushing the large
car, as directed by Fricke, and as soon as the cars were suffi-
ciently separated, some of the men, including May, went in
between the two cars, to enable them to push writh more
effect. While matters were in this situation, Fricke called
Grenz and Schmekel to also come and help push the large
car, whereupon they told him the plank would fall and some
one would get hurt. Notwithstanding this admonition and
warning, Fricke repeated his order with emphasis, saying,
"Let the lumber go to the devil." The order was obeyed,
and instantly the north end of the lumber fell to the ground,
tilting up the south end of the little car and driving it for-
ward with great force against the end of the car being thus
shoved. The action of the car was so instantaneous the
parties pushing at the end of the box car had no time to
escape, and the deceased was caught between the bumper of
the large car and the rubble car, thereby inflicting injuries
from which he subsequently died.
The material portion of the declaration, wherein the cause
of action is formally set forth, charges that the deceased, "on
December 24, 1880, was employed by defendant as a laborer
in the lumber yard connected with its machine shops, at
Bloomington, under the control and direction of one Fred-
1884.] C. & A. E. K. Co. v. May, Admx. 295
Opinion of the Court.
erick Fricke, foreman of said lumber yard, who had full con-
trol and authority over said intestate and his fellow-servants
employed therein, with full power to hire and discharge them,
and that said Fricke stood to the said Christian May and his
fellow-servants in the lumber yard as the representative of
the defendant, which was their common master ; and, while
so employed, said May was, by the order and direction of
Fricke, pushing a certain car of defendant upon a track in
said yard, using all due care and diligence for his own safety,
and that the said Fricke, by his gross negligence in managing
and directing the fellow-servants of said May, caused a cer-
tain other car or truck to be thrown with great violence
against him, the said May, whereby he was killed," etc.
Since no question is made as to the sufficiency of the
declaration, and all the facts therein charged are, by the
affirmance of the judgment in the Appellate Court, conclu-
sively settled adversely to the appellant, the present contro-
versy is brought within very narrow limits. The questions
of law presented for determination arise upon the instruc-
tions, and the rulings of the court upon questions of evidence.
As to the latter, they may be disposed of in a few words.
Upon the trial appellee was permitted to prove, against the
objections of appellant, that the deceased in his lifetime sup-
ported appellee and her children. In a case of this character,
where the action is founded solely upon the hypothesis that
the plaintiff, by reason of the husband's death, has been
injured in her means of support, such evidence is not only
admissible, but highly proper, — indeed, almost indispens-
able,— and there is nothing in the cases referred to sustain-
ing a contrary view. We find this objection in appellant's
brief in the Appellate Court, only. It seems to be abandoned
by counsel in their brief in this court, and therefore nothing
further need be said in reference to it.
Exceptions have been taken^and objections urged to most
all of appellee's instructions, but we do not think any of them
296 C. & A. E. E. Co. v. May, Admx. [Jan.
Opinion of the Court.
are well founded. One or two of them, standing alone, would
probably be subject to criticism, but when taken as part of a
series, including those given for the defendant as well as those
for the plaintiff, we are unable to discover any substantial
objection to them. Indeed, when thus considered, they are
much more favorable to the appellant than to the appellee,
and in view of the special circumstances of the case, more so,
we think, than the law warranted. The instruction claimed
to be most objectionable, and the only one specially noticed
in appellant's brief in this court, is as follows :
"2. That one servant of a corporation to whom the cor-
poration delegates the power of hiring and of discharging
other servants, and in whom the corporation vests the sole
control and direction of such other servants in and about the
work which they may be ordinarily required to do, is, as to
such servants whom he so hires, discharges and controls, the
representative of the master, and is not a fellow-servant, and
is not, under such state of facts, if proven by the evidence,
in the same line of employment as the servants whom he so
controls."
The consideration of this instruction will necessarily lead
us to inquire when the master will, and when he will not, be
held liable for the negligence of one servant resulting in injury
to another, and also to determine, as near as may be, the
controlling principle governing cases of this character.
Counsel for appellant, after referring to that part of the
opinion in the Moranda case, 93 111. 302, wherein is discussed
the reasons which led to the adoption of the rule which ex-
empts the common master from liability on account of an
injury caused by the negligence of a fellow-servant in the
same line of employment, proceed to say of this instruction :
"It would hardly seem necessary to argue that this instruc-
tion places the question of who are fellow-servants on an
entirely different basis, — that* is, although, as in this case,
1884.] C. & A. E. K. Co. v. May, Admx. 297
Opinion of the Court.
they were in the strictest sense consociates, yet if one had the
right to employ and discharge the other, and direct the work,
they are not fellow-servants. This may all be true, and yet
public policy requires one to watch the other, and notify the
superior of incapacity or carelessness in a dangerous employ-
ment, as much as if they were all employed and directed by
a common superior. " It is to be remarked, in the first place,
the office or object of the instruction was not to state to the
jury the reasons upon which the rule in question is founded,
but rather to state a hypothetical case in which the rule itself
would not be applied, and if this fact is kept in view we see
no ground for misapprehension, nor do we see any real, or
even apparent, conflict between it and what is said in the
Moranda case. The instruction does not, either in terms or
by implication, tell the jury that a servant who has power to
hire and discharge other servants with whom he is in the habit
of working or rendering service to a common master, can not,
by reason thereof, be a fellow-servant within the meaning of
the rule which exempts the master from liability. But admit-
ting the instruction, when considered alone, is ambiguous in
this respect, the jury could not possibly have been misled by it,
for the court distinctly laid down the very reverse of this pro-
position in the following instructions given for the defendant :
"3. The court instructs the jury, for the defendant, that
the common employer is not liable for any injury that may
accrue to one of a set of fellow-servants of that common em-
ployer engaged in the same line of employment, by reason of
the negligence of a fellow-servant in the same line of employ-
ment, and the fact that the fellow-servants are employed by
different agents of the common employer, or that one has
general supervision of the work of the whole, and a right to
direct its execution, does not prevent them from being fellow-
servants of the common employer in the same line of employ-
ment."
298 C. & A. E. E. Co. v. May, Admx. [Jan.
Opinion of the Court.
"7. The court instructs the jury, for the defendant, that
the mere fact that of a gang of workmen one is the foreman,
does not prevent, their all being servants in the same line of
employment, or. render the employer liable for an injury result-
ing from the negligence of such superintendent or superior."
The instruction complained of, when fairly construed, in
effect tells the jury that a servant having the exclusive con-
trol over other servants under a common master, including
the power of hiring and discharging, is, in the exercise of
these powers, the representative of the master, and not a
mere fellow-servant, and this, we understand, is the true rule
on the subject. It is true the instruction does not state this
in so many words, but when construed in the light of the
facts and the two instructions above mentioned given for
the defendant, what we have stated is the fair import of it.
More or less is to be inferred in all writings, and instructions
are no exceptions to the rule. Any attempt to say, in express
terms, every possible conclusion or inference intended to be
drawn from a writing, could not, in the nature of things, be
clone, for the attempted explanations would also have to be
explained, and so on indefinitely. Moreover, such a course,
instead of leading to perspicuity and certainty, would most
generally result in confusion and doubt. Now, if, after the
word "master, " in the fourth line from the bottom of the in-
struction, the words, "when exercising such power or control,"
wTere inserted, it would relieve the instruction from all am-
biguity whatever, and it would be entirely unobjectionable,
even if standing alone. But we think the omitted words are
fairly implied, and hence there is no substantial objection to
the instruction.
The true rule on the subject, as we understand it, is this :
The mere fact that one of a number of servants who are in
the habit of working together in the same line of employ-
ment, for a common master, has power to control and direct
the actions of the others with respect to such employment,
1884.] C. & A. E. E. Co. v. May, Admx. 299
Opinion of the Court.
will not of itself render the master liable, for the negligence
of the governing servant, resulting in an injury to one of^the
others, without regard to other circumstances. On the other
hand, the mere fact that the servant exercising such author-
ity, sometimes, or generally, labors with the others as a
common hand, will not of itself exonerate the master from
liability for the former's negligence in the exercise of his
authority over the others. Every case, in this respect, must
depend upon its own circumstances. If the negligence com-
plained of consists of some act done or omitted by one hav-
ing such authority, which relates to his duties as a co-laborer
with those under his control, and which might just as readily
have happened with one of them having no such authority,
the common master will not be liable. For instance, if the
section boss of a railway company, while working with his
squad of men on the company's road, should negligently
strike or otherwise injure one of them, causing his death, the
company would not be liable ; but when the negligent act
complained of arises out of and is the direct result of the
exercise of the authority conferred upon him by the master
over his co-laborers, the master will be liable. In such case
he is not the fellow-servant of those under his charge, with
respect to the exercise of such power, for no one but himself,
in the case supposed, is clothed with authority to command
the others.
When a railway company confers authority upon one of its
employees to take charge and control of a gang of men in
carrying on some particular branch of its business, such
employee, in governing and directing the movements of the
men under his charge with respect to that branch of its busi-
ness, is the direct representative of the company itself, and
all commands given by him within the scope of his authority
are, in law, the commands of the company, and the fact that
he may have an immediate superior standing between him
and the company makes no difference in this respect. In
300 C. & A. K. K. Co. v. May, Admx. [Jan.
Opinion of the Court.
exercising this power lie does not stand upon the same plane
with those under his control. His position is one of supe-
riority. When he gives an order within the scope of his
authority, if not manifestly unreasonable, those under his
charge are bound to obey, at the peril of losing their situa-
tions, and such commands are, in contemplation of law, the
commands of the company, and hence it is held responsible
for the consequences. These views are in strict accord with
all that is said in the Moranda case, to which such frequent
references have been made. It is believed, moreover, that
the test here suggested, and recognized in many of the cases,
will reconcile many of the apparently conflicting decisions of
the courts of this country which have declined to follow the
English rule on this subject, and the principle, though not
formally announced heretofore, is the logical result of our
own adjudications.
Testing the present case by the rule here announced, the
company is clearly liable, for it is manifest that May's death
was the direct result of an improper and inconsiderate order
that no one exercising ordinary skill or prudence would have
given. It was not a mere careless act done by him in per-
forming his work as a co-laborer or fellow-servant, but it
was a negligent and unskillful exercise of his power and
authority over the men in his charge, for which, as we have
already seen, the company must be held to answer. In sup-
port of the general views here expressed we cite the follow-
ing authorities : Buckner v. New York Central Ry. Co. 2
Lansing, 506, (49 N. Y. 672) ; Chicago, Burlington and Qidncy
R. R. Co. v. McLallen, 84 111. 116; Lalor v. Chicago, Bur-
lington and Quincy R. R. Co. 52 id. 401 ; Mullen v. P. and
S. M. Steamship Co. 78 Pa. St. 25 : Gormly v. Vulcan Iron
Works, 61 Mo. 492.
The judgment of the Appellate Court, we think, for the
reasons stated, is right, and it is therefore affirmed.
Judgment affirmed.
1884.] C. & A. E. K. Co. v. May, Admx. 301
Sheldon, Ch. J., and Scott and Ceaig, JJ., dissenting.
Sheldon, Ch. J., and Scott and Craig, JJ., dissenting:
We are unable to concur in the opinion in this case. The
circuit court, at the instance of the plaintiff, gave the fol-
lowing instruction to the jury : *
"That one servant of a corporation, to whom the corpora-
tion delegates the power of hiring and of discharging other
servants, and in whom the corporation vests the sole control
and direction of such other servants in and about the work
which they may be ordinarily required to do, is, as to such
servants whom he so hires, discharges and controls, the repre-
sentative of the master, and is not a fellow-servant, and is
not, under such state of facts, if proven by the evidence, in
the same line of employment as the servants whom he so
controls."
It is the well settled general doctrine that a person entering
the service of another takes upon himself, in consideration of
the compensation to be paid him, the ordinary risks of the
employment, including the negligence of his fellow-laborers.
(Illinois Central R. R. Co. v. Cox, 21 111. 20.) The mere fact
that there was delegated to Fricke, the foreman here, the
power of hiring and discharging other servants, and that
there was vested in him the sole control and direction of the
other servants, did not, in the respect of his alleged act of
negligence in this case, change his character from that of a
co-servant to that of a representative of the company. The
general rule is, that a foreman, or one who superintends or
controls the operations of the servants in a particular busi-
ness, is a fellow-servant as much as the other servants whose
work he superintends ; that if the master places a servant in
a position of authority over other servants, and makes the
inferior servants subject to the direction and control of the
superior, he is not chargeable for the consequences of direc-
tion's given by such superior servant within the scope of their
employment. Feltham v. England, L. E. 2 Q. B. 32 ; Wilson
302 C. & A. E. E. Co. v. May, Admx. [Jan.
Sheldon, Ch. J., and Scott and Craig, JJ., dissenting.
v. Merry, L. E. 1 H. L. 326 ; Ho wells v. Landore Steel Co.
L. E. 10 Q. B. 62, (11 Moak, 153) ; Leader v. A. R. R. Co.
62 Maine, 463; Albro v. Agawam Canal Co. 6 Cush. 75;
0' Conner y. Roberts, 120 Mass. 227; Weger v. Pennsylvania
R. R. Co. 55 Pa. 460; Davis v. Detroit R. R. Co. 20 Mich.
105.
We believe the true rule now prevailing, as established by
the great weight of authority, and the only one to be sus-
tained on principle, is, that the master can not be held
chargeable for any act of negligence on the part of the supe-
rior servant, except in so far as such servant is charged with
the performance of the master's. duty to his servants, such
as, the supplying of- safe machinery, the selection of compe-
tent servants, etc. ; and to the extent of the discharge of
those duties which the master owes to his servants, by the
superior servant, the latter stands in the place of the master,
but as to all other matters he is a mere co-servant. Crispin
v. Babbitt, 81 N. Y. 516 ; Mike v. B. and A. R. R. Co. 53 id.
549 ; Wilson v. Merry, supra; Davis v. Central Vermont R. R.
Co. 55 Vt. S4; State, use of Hamelin v. Malstcr el al. 57 Md.
287; Wood on Master and Servant, sec. 438, et seq.
In the application of the rule to the case in hand, there
was one of the company's duties to its servants which was
devolved upon Fricke, viz., the hiring and discharging of ser-
vants. In that respect Fricke was the representative of the
company, and for any negligence of his in the performance
of that duty, — in not employing competent or not discharging
incompetent servants, — the company would have been re-
sponsible. So if Fricke, in the exercise of his power of con-
trol and direction of servants, had directed the deceased to
do an act not within the scope of his employment which
exposed him to hazards and dangers that were not contem-
plated in the contract of service, the company might have
been liable for injury to the deceased therefrom, there being
a duty on the part of the master not to expose the servant to
1884.] C. & A. E. E. Co. v. May, Admx. 303
Sheldon, Oh. J., and Scott and Craig, JJ., dissenting.
extraordinary risks not incident to the service in which he
was einjDloj^ed. Such was Lalor's case, 52 111. 401, cited by
appellee's counsel. And the case of McLallen, 84 111. 116,
cited, was one of injury to a conductor from the giving of a
negligent order as to the running of the train, by the assistant
superintendent, he being a general officer, "to whose orders
the trains were all subject." His act was one in the general
management of the business of the corporation, and in the
discharge of a duty pertaining to the principal.
We see nothing in these cases to militate against the views
we express. The only matters in which Fricke was charged
with the performance of the company's duties to its servants,
and wherein he was the representative oT"the company, were
the two we have mentioned above. The negligence of Fricke
which is here complained of, occurred in the performance of
the lowest detail of common laborer's work, — pushing a car-
load of lumber into the car shops. It was' not a duty which
the company owed to its servants to give any directions about
the doing of that piece of work. In the doiug of it, Fricke
was working together with the others, as a hand with them,
as he did in all the work of the yard. He was strictly, we
think, but a fellow-laborer with them, and did not act as the
representative of the corporation in the doing of that work,
or giving directions in the doing of it. Suppose that instead
of the other two men he had himself been holding up the
lumber on the rubble car, and he had let it drop, could it be
said that that was not the negligence of a fellow-servant ? —
that it was not one of the ordinary risks of the work which
the other workmen had assumed ? We think not, but that it
was strictly such. We do not see that Fricke's directing the
two men to let go the lumber could found any more of a lia-
bility than his doing of the act himself.
There would have been more of plausibility in this claim
of liability if the deceased had been injured in the doing of
an act which Fricke had ordered him to do. But not even
304: W., St. L. & P. Ey. Co. v. Zeigler. [Jan.
Syllabus.
such was the case. May, the deceased, was not engaged at
the rubble car, on which was the lumber, at all ; he was
at the other car — the stock car. The two men, Grenz and
Schmekel, were alone holding up the lumber on the rubble
car, and it was they alone whom Fricke directed to let go of
the lumber, and on their doing so it fell down, and forced the
rubble car forward till it struck and injured the deceased,
who was standing in front of the bumper of the stock car.
We think this instruction was erroneous, and that because
of it the judgment should be reversed.
Wabash, St. Louis and Pacific Eailway Company
v.
Jacob Zeigler.
Filed at Springfield Oct. 1, 1883 — Rehearing denied January Term, 1884.
Railroad — liability for double value of fence built by owner — statute
construed. To entitle an owner of land over which a railroad is operated, to
recover of the railroad company double the value of any fence built by him
upon its neglect to do so on proper notice, the statute must be strictly fol-
lowed, and the fence must be such as the statute requires, and be built in
the mode the statute contemplates. The fence must be built on the sides of
the railroad. If built two feet inside of the right of way this penalty can
not be recovered. It is not held, however, that the fence may not be built
entirely on the company's right of way, but in doing so it must be on the
sides of the road.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the County Court of
DeWitt county; the Hon. George K. Ingham, Judge, pre-
siding.
Messrs. Moore & Warner, for the appellant.
Mr. E. A. Lemon, and Mr. F. M. Burroughs, for the ap-
pellee.
1884.] W., St. L. & P. By. Co. v. Zeigler. 305
Opinion of the Court.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
This was an action brought by the adjoining owner, against
the railroad company, under the statute, (Eev. Stat. 1874,
p. 80S, sec. 41,) to recover double the value of a fence built
by such owner to fence his land from the railroad. There
was judgment for the plaintiff for such double value, which
was affirmed by the Appellate Court for the Third District,
and on the proper certificate being made, the defendant ap-
pealed to this court.
The statute requires that every railroad corporation shall,
within six months after its line is open for use, erect fences
"on both sides of its road," and provides that on neglect to
do so, the owner of the adjoining land, after having given
thirty days' notice in writing to the railroad corporation to
build the fence, and its refusal to build, shall have the right
to enter upon the land and track of the railroad company,
and may build such fence, and shall be entitled to double the
value thereof from the corporation, with interest at one per
cent per month.
The sole point presented for consideration is upon the place
of building the fence. The Appellate Court certifies "that
the proof in this case shows that the fence and gates in ques-
tion, as built by the appellee, were intentionally built by him
two feet inside the right of way of the appellant on each side
of its railroad track. If this proof sustains the declaration,
under the statute the finding of the court below is sustained
by the evidence. If, on the contrary, the law requires the
fence to be built on the line of the right of way, then the
•finding is not sustained. This court held, in deciding this
case, that the law does not require the fence to be built upon
the line, but may be built entirely on the railroad company's
right of way, and the person building it recover under the
statute under which this suit was brought. " The railroad
20—108 III.
306 W., St. L. & P. Ey. Co. v. Zeigler. [Jan.
Opinion of the Court.
was entirely on appellee's land, and he built both lines of
fence. The fence was a post and board fence. The decla-
ration avers the fence was built "on both sides of said rail-
road."
To recover upon this penal liability of double the value of
the fence, the statute should be strictly followed in the build-
ing of the fence. The fence should be such an one as the
statute requires and authorizes, built in the mode the statute
contemplates. Such a fence is one on the sides of the rail-
road. The fence in question was not built on the side of the
railroad, but was intentionally built two feet inside the right
of way, — two feet from the side of the road, — thus depriving
appellant of four feet of its right of way, and appropriating
the same to appellee's use by fencing it in with his own land.
If appellee intentionally and of set purpose may do this, we
do not see why he might not take in a yet greater number of
feet, and where would be the limit short of the railroad's
actual track ? The railroad is entitled to the unobstructed
use of its entire right of way, except so much as may be
necessary for a fence. This same statute makes it the duty
of all railroad corporations to keep their rights of way clear
from all dead grass, dry weeds, or other dangerous, combus-
tible material, etc. It should not be permitted to appellee,
by fencing off a portion of the right of way, to make the per-
formance of this duty more difficult and expensive to the
railroad company. We do not hold that the fence might not
be built entirely on the railroad company's right of way, but
that in doing so it should have been built on the side of the
road, and not, as it was in this case, two feet inside the right
of way. To entitle to a recovery under this statute the fence
must be built where the statute requires it should be — on
the side of the railroad. It was not so built here.
The judgment must be reversed and the cause remanded.
Judgment reversed.
1884.] Lunt et al. v. Lunt. 307
Syllabus.
Mary P. Lunt et al.
v.
Orrington Lunt.
Filed at Springfield June 15, 1883 — Rehearing denied January - Term, 1884.
1. Will — what is a perpetuity. A perpetuity is a limitation/ taking the
subject thereof out of commerce for a longer time than a life or lives in being
and twenty-one years beyond. In case of a posthumous child a few more
months may be allowed.
2. If the title to an estate devised vests in the devisees upon the death of
the testator, although the full enjoyment thereof is postponed to a future
day, the devise will not be obnoxious to the rule of law agajnst the creation
of perpetuities.
3. Same — devise — whether contingent or vested. A devise to A if or
when he shall attain the age of twenty-one years, standing alone, will confer
a contingent interest only; but a devise to trustees until A shall attain the
age of twenty-one years, and if or when he shall attain that age then to him
in fee, is construed as conferring on A a vested estate in fee simple, subject
to the prior chattel interest given to the trustees, and upon A's death under
the prescribed age the property will descend to his heir at law. So a devise
over, in case he dies before reaching such age, supplies an argument in favor
of the prior devisee taking a vested interest.
4. Same — construed, by taking all its clauses together. In construing a
provision of a will the court should consider each clause thereof, not alone,
but in connection with each other, to ascertain the real intention of the tes-
tator, which must govern, unless it conflicts with some known rule of law.
5. A testator made a residuary devise to his executors as trustees, and to
tn% survivor, upon the following trust: That the rents, income, etc., or as
much as necessary, be paid out for the support of the testator's wife, and
the support and education of his children, until they should arrive at the age
of twenty-one years, when one-third of two-thirds of the property devised
should vest absolutely in each of his children, or the survivor of them; and
in case the wife should marry, one-third only of the income and rents of the
real estate should be paid to her during her life. It was also provided fur-
ther, as follows: "When my said children, or the survivor, shall arrive at
the age of thirty years, if my wife still survive, the remainder of said two-
thirds of my property shall go to and vest in each of my said children equally,
or in the survivor, and the issue of the deceased, if any exist, equally, or
if both die leaving issue, then at such period as the youngest of my said
children would have been thirty years of age the same shall vest in the issue
308 Lunt et al. v. Lunt. [Jan.
Brief for the Appellants.
of each of my children equally, the children taking a parent's share, and if
both die without issue, then to my heirs at law; and in case my wife shall
die within thirty years from the birth of my youngest child, then at the ex-
piration of said thirty years my whole property shall go to my heirs at law,"
and in case of her death after the children become thirty years old, the re-
maining third should go and vest the same as the two-thirds: Held, that
the death of the wife leaving both children living did not accelerate the pos-
session of the property or terminate thp trust, but that all the property, ex-
cept one-third of two-thirds, which passed to the children when the youngest
arrived at the age of twenty-one, remained in the surviving trustee until the
youngest child was thirty years of age, when a division was to be made of
the remaining property.
Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Circuit Court of Cook
county; the Hon. Thomas A. Moran, Judge, presiding.
Messrs. Collins & Adair, for the appellants :
Estates can not be limited in any mode, so as to be not
subject to alienation, beyond the period of a life or lives in
being and twenty-one years thereafter, allowing the period of
gestation in addition of a child en ventre sa mere. 2 Green-
leafs Cruise, 716, 717; Lewis on Perpetuities, 164, 172;
1 Smith's Leading Cases, part 2, 722, 723 ; 1 Washburn on
Keal Prop. 82 ; 1 Jarman on Wills, 222 ; 2 Eedfield on Wills,
568, sec. 4; Waldo v. Cummings, 45 111. 421.
If, by any possibility, the vesting may be postponed beyond
this period, the limitation will be void. 2 Washburn on Eeal
Prop. 359 ; 1 Jarman on Wills, 231-233 ; 2 Eedfield on Wills,
571 ; Joel v. Audley, 1 Cox, 324.
If the limitation is void as being too remote, the will will be
construed as if no such clause were in it, and the first taker
holds his estate discharged of the limitation over. Brattle
St. CK v. Grant, 3 Gray, 142; Wood v. Griffin, 46 N. H. 234;
Lewis on Perpetuities, 657 ; 2 Washburn on Eeal Prop. 360 ;
18 Ad. & Ellis, (N. S.) 224; Anderson v. Grable, 1 Ark. 136;
Joslin v. Hammond, 3 M. & K. 110 ; Seward v. Wilcox, 5 East,
198.
1884.] Lunt et al. v. Lunt. 309
Brief for the Appellants.
The rule against perpetuities, and the effect of the executory
devise being void for remoteness, are applicable to personal as
well as to real property. 1 Jarman on Wills, 223, 231-233,
255; Lewis on Perpetuities, 164; 2 Kedfield on Wills, 278.
A limitation over by way of executory devise, based on "an
indefinite failure of issue, " as in the seventh clause of item 4,
is void as too remote. 2 Washburn on Keal Prop. 360, 361 ;
4 Kent's Com. 276; 1 Jarman on Wills, 223; 2 id. 418;
2 Eedfield on Wills, 275, 276, 569; Anderson v. Jackson, 16
Johns. 382.
Trusts for accumulation, which are not necessarily limited
to the term of a life or lives in being and twenty-one years
after, are absolutely void. Lewis on Perpetuities, 592, 172;
Curtis v. Lukin, 5 Beav. 147 ; Lord Southampton v. Hertford,
2 V. & B. 61 ; Thellusen v. Woodford, 4 Ves. 227; 2 Swanst.
432; 14 Sim. 369; 17 id. 187; 1 H. L. Cases, 406.
Where property is directed to accumulate for a certain
period, or where the payment is postponed, the legatee or
devisee, if he has an absolute, indefeasible interest in the
legacy or devise, is not bound to wait until the expiration of
that period, but may require payment the moment he is com-
petent to give a valid discharge. Saunders v. Vautier, 4 Beav.
115; Josselyn v. Josselun, 9 Sim. 64; Rhoads v. Rhoads, 43
111. 252.
A devise or bequest of property to the testator's heirs at
law, means those who are such at the time of his decease,
unless a contrary intent is very obvious. 1 Kedfield on
Wills, 392; Doe v. Lawson, 3 East, 278; Bird v. Lnckie
8 Hare's Ch. 301 ; Phillips v. Evans, 4 DeGr. & Sm. 188
2 Jarman on Wills, 52; Abbott v. Bradstreet, 3 Allen, 587
Smith v. Harrington, 4 id. 566; Knight v. Knight, 3 Jones'
Eq. 167.
A will is to be construed from all its parts, so as to give
effect to every clause. Bland v. Bland, 103 111. 12.
310 Lunt et at. v. Lunt. [Jan.
Brief for the Appellee.
Mr. Theodore Sheldon, for the appellee :
The words, "heirs at law," in the will, mean heirs at the
time of the testator's death. 2 Jarman on Wills, 87 ; Hollo-
ivay v. Holloway, 5 Yes. 399 ; Abbott v. Bradstreet,> 3 Allen,
587; Doe v. Lawson, 3 East, 278; Phillips v. Evans, 4 DeG.
& Sm. 188; Williman v. Holmes, 4 Eich. Eq. (S. C.) 475;
Nicoll v. Scott, 99 111. 529.
Clause 8 should be construed with clause 7, and as based
on the contingency of the death of both children without issue
before the younger child reaches her thirtieth year, and oper-
ative only upon that contingency. Under this construction
the daughters took, at the testator's death, a vested estate in
fee, determinable only upon their dying under the age spe-
cified. 2 Eedfield on Wills, *225, sec. 18 ; Nicoll v. Scott, 99
111. 529; Illinois Land and Loan Co. v. Bonner, 75 id. 315.
This same rule of construction applies whether the con-
veyance is direct or through trustees. 2 Eedfield on Wills,
*225, sec. 19; Phipps v. Ackers, 9 CI. & Fin. 583; Bland v.
Williams, 3 M. & K. 411.
The following are cases where immediate vesting has been
allowed with postponed possession, even though the time
limited for possession is beyond the boundary of perpetuity :
Dodson v. Hay, 3 Bro. Ch. 405 ; Montgomery v. Woodley, 5
Yes. 522; Bingley v. Brodhead, 8 id. 416; Kevem v. Wil-
liams, 5 Sim. 171 ; Blease v. Burgh, 2 Beav. 221; Doe dem.
Cadogen v. Ewart, 7 Ad. & Ell. 636 ; Doe dem. Dolley v.
Ward, 9 id. 5S2 ; KirJdand v. Cox, 94 111. 400.
The cases in this State relating to perpetuities are Rhoads
v. Rhoads, 43 111. 239, and Waldo v. Cummings et al. 45 id.
421.
An estate is held to vest at the earliest period possible,
unless a contrary intent is clearly apparent. Doe v. Consi-
dine, 6 Wall. 475.
It appears from the entire instrument that the word "vest, "
us6d in item 4, is to be taken in its popular and not its legal
1884.] Lunt et al. v. Lunt. 311
Opinion of the Court.
sense. Chief among such indications is the devise of the
income secured to the donees in the meantime. Watson v.
Hayes, 5 M. & K. 125; Belle v. Cade, 31 L. J. 383; Manice
v. Manice, 43 N. Y. 303. Keference to the fund as "her
share," so indicates. Berkeley v. Swinburne, 16 Sim. 275;
Poole v. Bott, 11 Hare, 33; Walker v. Simpson, 1 K. & J.
713 ; Corneck v. Wadman, L. K. 7 Eq. 80. The devise over
without issue of the daughters also so indicates. Taylor v.
Frobisher, 5 DeG. & Sm. 191.
Mr. Justice Craig delivered the opinion of the Court :
On the 16th day of December, 1856, George A. Kobb, of
Cook county, died testate, leaving a widow, Martha Eobb,
and two daughters, Mary P. and Nellie K. Eobb, who were
both, at the time, minors. The will of the testator was
admitted to probate in January after his death. In the first
clause of the will he directs the payment of his debts and
funeral expenses. In the second clause he gives to his wife
his household furniture. The third clause is as follows :
"All the rest and residue of my property, real and personal,
of which I may die seized and possessed, I hereby devise and
bequeath to my beloved wife, Martha, and my respected
friend, Gilbert Hubbard, jointly, and the survivor of them,
in trust for the use and trusts hereinafter specified. And I
hereby constitute them, and the survivor of them, executors
of this my last will and testament, and guardian of my infant
children, Mary P. and Nellie." The fourth clause was in the
following words : "The income, rents and proceeds of my
said real and personal property, or so much thereof as may
be necessary, my said executors and trustees, or the survivor,
shall pay out and expend for the support of my said wife,
and the support and education of my said children, until they
or the survivor shall arrive at the age of twenty-one years,
when one-third of two-thirds of my said property shall go to
312 Lunt et al. v. Lunt. [Jan.
Opinion of the Court.
and vest absolutely in each of my said children, or the sur-
vivor of them ; but if at any time my said wife should marry,
one-third only of the income and rents of my real estate shall
be paid over to her during her life. When my said children,
or the survivor, shall arrive at the age of thirty years, if my
wife still survive, the remainder of said two-thirds of my
property shall go to and vest in my said children equally, or
in the survivor, and the issue of the deceased, if any exist,
equally, or if both die leaving issue, then at such period as
the youngest of my said children would have been thirty
years of age the same shall vest in the issue of each of my
children equally, the children taking a parent's share, and if
both die without issue, then to my heirs at law ; and in case
my said wife shall die within thirty years from the birth of my
youngest child, then at the expiration of said thirty years my
whole property shall go to my heirs at law, and in case
my wife die after my said children shall arrive at the age of
thirty years, then said remaining third of my said property
shall go and vest in the same manner as said two-thirds, —
as said two-thirds are above devised and disposed of. "
On the 10th day of February, 1876, the youngest of the
children, Nellie Eobb, (now Nellie Collins.) attained the age
of twenty-one years. On the 5th day of June, 1876, Martha
Eobb, the widow, died, and appellants, Mary P. Lunt and
Nellie E. Collins, daughters of deceased, claim that upon the
death of the widow all the real and personal estate in the
hands of Hubbard, sole acting trustee, under the will de-
scended to and vested in them, and they became entitled to
receive from Hubbard all of the real and personal estate of
the deceased, although Nellie E. Collins, the youngest of the
daughters, will not arrive at the age of thirty until February
10, 1885. This position is predicated upon the theory that the
following clause of the will, "and in case my said wife shall
die within thirty years from the birth of my youngest child,
then at the expiration of said thirty years my whole property
1884.] Lunt et at. v. Lunt. 313
Opinion of the Court.
shall go to my heirs at law, " is void for remoteness, being in
conflict with the rule of law for the prevention of perpetuities.
If the provision of the will is obnoxious to the long settled
and well established rules of law forbidding perpetuities, of
course it can not be sustained. But is the will liable to the
objection urged against it?
In Bouvier's Law Dictionary, a perpetuity is defined to be
a limitation taking the subject thereof out of commerce for
a longer period of time than a life or lives in being, and
twenty-one years beyond, and in case of a posthumous child
a few months more, allowing for the time of gestation. This
rule was approved by this court in Waldo v. Cummings, 45 111.
421. In 2 Washburn on Beal Prop., page 652, the author
defines a perpetuity in the following language : "Grants of
property wherein the vesting of an estate or interest is unlaw-
fully postponed." Was the vesting of this estate unlawfully
postponed, as declared by Washburn, or was this property
taken out of commerce by the provisions of the will for a
longer period than a life or lives in being, and twenty-one
years longer, so as to bring the will within the rule given by
Bouvier? This will depend upon whether the estate vested
in the daughters. If the title to the property became vested
in the two daughters upon the death of the testator, with the
full enjoyment thereof postponed to a future day, the will
would not be regarded obnoxious to the rule of law for the
prevention of perpetuities. The important inquiry then is,
whether the title to the property, under a proper construction
of the will, became vested in the two daughters upon the
death of the testator.
In 1 Jarman on Wills, page 734, it is said : "Where a
testator devises lands to trustees until A shall attain the age
of twenty-one years, and if or when he shall attain that age
then to him in fee, this is construed as conferring on A a
vested estate in fee simple, subject to the prior chattel interest
given to the trustees, and, consequently, on A's death under
314 Lunt et al. v. Lunt. [Jan.
Opinion of the Court.
the prescribed age, the property descends to his heir at law,
though it is quite clear that a devise to A if or when he shall
attain the age of twenty-one years, standing isolated and
detached from the context, would confer a contingent interest
only."
In 2 Eedfield on Wills, p. 225, sec. 18, it is said : "Where,
therefore, the devise is to a person when or if he shall attain
a certain age, or at a certain age, this, standing alone, would
be contingent ; yet if followed by a limitation over if he shall
die before a certain age, this is regarded as explanatory of
the nature of the estate which it was intended the devisee
should take upon arriving at the age named, — i. e., that it
should then become absolute and indefeasible. The interest,
therefore, in such cases is held to vest upon the decease of
the testator, and the devise over always supplies an argu-
ment in favor of the prior devisee taking a vested interest.
Where the devise over is made dependent upon the first de-
visee dying before he became of age, or without issue, or any
similar event, it is considered that the devise is equivalent
to a provision that the first donee shall take an immediate
vested interest, liable to be defeated by the happening of the
contingency named, or if it does not happen, the estate then
to become absolute and indefeasible. "
The doctrine announced in Jarman and Eedfield was ap-
proved by this court in Illinois Land and Loan Co. v. Bonner,,
75 111. 315. Bland v. Williams, 3 M. & K. 411, is also an
authority in point. In the case as reported there was a be-
quest to the trustees to apply so much of the income as may
be necessary for the support and education of the children of
the testator's daughter until they should respectively attain
the age of twenty-four, and then to divide the principal
equally between them, with a gift over in case any of them
should die under twenty-four without issue. It was held
that the provision was not void as being too remote, but gave
a present vested interest with an existing bequest over in case
1884.] Lunt et al. v. Lunt. 315
Opinion of the Court.
of death under twenty-four without issue. The same rule is
announced in Smither v. Wallack, 9 Yes. 233, Peyton v. Berry,
2 P. Wms. 626, and Mcinkin v. Phillipson, 3 M. & K. 257.
Gilman v. lleddington, 24 N. Y. 1, although predicated some-
what upon the statute of New York, may be regarded as a
case in point. In that case the trustees were required by the
will to pay, convey or make over the real and personal estate,
upon the death of the two younger children or the expiration
of thirty years, to the survivors of such children, or the issue
then living of such as might be dead, in equal proportions,
the issue to take the share of the parent, with a substitu-
tional limitation in favor of other persons. The court held
that the children took a vested fee determinable as to each
upon his dying without issue within the prescribed period.
But to return to the fourth provision of the will. Upon a
close and careful examination of each of the various clauses,
and a consideration of the one clause in connection with the
others, which is the correct mode to arrive at the true intent
of the testator, we think it apparent there was a limitation
over, as declared by Eedfield, and the estate became vested at
the death of the testator, with the enjoyment deferred until
such time as the youngest daughter would attain the age of
thirty. The great object in the construction of wills is to
arrive at the intention of the testator, and when that can be
ascertained from the terms of the instrument, such a con-
struction should be placed upon it as will carry out that inten-
tion, unless in so doing some well known rule of law will have
to be disregarded. It will not do to single out one clause of
a will, as has been clone here in regard to clause 8, and say
that such a clause, when standing alone, is void. Clause 8
must be construed in connection with clause 7. Clauses 4,
5, 6, 7 and 8 read as follows : (4) "When my said children,
or the survivor, shall arrive at the age of thirty years, if my
wife still survive, the remainder of said two-thirds of my
property shall go to and vest in my said children equally,
316 Lunt et al. v. Lunt. [Jan.
Opinion of the Court.
(5) or in the survivor, and the issue of the deceased, if any
exist, equally, (6) or if both die leaving issue, then at such
period as the youngest of my said children would have been
thirty years of age the same shall vest in the issue of each
of my children equally, the children taking a parent's share,
(7) and if both die without issue, then to my heirs at law,
(8) and in case my said wife shall die within thirty years
from the birth of my youngest child, then at the expiration
of said thirty years my whole property shall go to my heirs
at law."
It will thus be seen that clauses 7 and 8 are separated
merely by a comma, and it is claimed by appellee that the
word "and," in the connection in which it is used, should be
understood as meaning, "and in addition to the foregoing."
The construction contended for we believe to be correct.
Under this construction the death of the wife while both
children were living did not accelerate the possession of the
property, nor did it terminate the trust which had devolved
upon the trustees, but by the plain terms of the will the prop-
erty, except two-ninths, which passed to each of the daughters
when the younger one arrived at the age of twenty-one years,
would remain in the hands of the trustees until the youngest
daughter arrived at the age of thirty, when the two daughters
would be entitled to a division. This construction also car-
ries out the obvious intention of the testator, and leaves every
provision of the will in full force and effect. Upon a careful
inspection of the terms of the will the intention of the tes-
tator seems to have been, first, to provide for the support of
the wife and the two daughters until the younger daughter
should arrive at the age of twenty-one years, when one-third
of two-thirds of the property should vest absolutely in each of
the daughters ; second, to confer a life estate in one-third
of the real property in the wife during life, for her support ;
and third, to defer a final division of the estate until the
youngest daughter should be thirty years of age, when, if the
1884.] C., M. & St. P. Ky. Co. v. Packet Co. 317
Syllabus.
wife should still be living, the remainder of the two-thirds
should go to the daughters equally, or the survivor and issue
of the deceased, if one should be dead, and in case the wife
should die before the youngest daughter attained the age of
thirty, as she did, then the whole estate should be divided in
like manner as the remaining two-thirds.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
The Chicago, Milwaukee and St. Paul Eailway Company
v.
The Keokuk Northern Line Packet Company, In re Samuel
C. Clubb, interpleader.
Filed at Springfield Oct. 1, 1883 — Rehearing denied January Term, 1884.
1. Eeceivek— extent of his authority — right of foreign receiver to re-
move property out of this State. Tlie powers of a receiver are coextensive
only with the jurisdiction of the court appointing him, and a foreign receiver
will not be permitted, as against the claims of creditors resident in this State,
to remove from this State the assets of the debtor, it being the policy of every
government to retain in its own hands the property of the debtor until all
domestic claims against it have been satisfied.
2. But where a receiver has once obtained rightful possession of personal
property situate within the jurisdiction of his appointment, which he was
appointed to take charge of, he will not be deprived of its possession though
he takes it, in the performance of his duty, into a foreign jurisdiction. While
there it can not be taken from his possession by creditors of the insolvent
debtor who reside within such jurisdiction.
3. Same — when he has a special property in the goods of the debtor,
which he may protect. Where a receiver takes possession of a barge within
the jurisdiction of the court appointing him, as the property of the insolvent
debtor, he becomes invested with a special property in it, like that of a sheriff
on a valid levy, and he may protect this special property while it continues,
by action, in like manner as if he were the absolute owner.
4. Same— property in the thing not lost or abandoned by suffering it
to be taken out of the State. Where a packet company, whose business it
was to run boats on the Mississippi river, was adjudged insolvent by the
318 C, M. & St. P. Ey. Co. v. Packet Co. [Jan.
Statement of the case.
proper court, in St. Louis, in the State of Missouri, and a receiver appointed
to manage the affairs of the corporation, and he took possession of a barge
of the corporation'in St. Louis, and chartered the same to a steamboat, under
which it was taken up the river to Quincy, in this State, where it was detained
by ice, and the captain in charge of the same gave it up to the receiver, who
took possession and placed £ guard over the same, and it was there attached
by a creditor of the insolvent company, it was held, that there was no aban-
donment of the barge by the receiver, and that he had a right to interplead
under the statute, and insist upon his right to the same.
Appeal from the Appellate Court for the Third District;
— heard in that court on appeal from the Circuit Court of
Adams county ; the Hon. John H. Williams, Judge, presiding.
This was an attachment suit, brought by the Chicago, Mil-
waukee and St. Paul Kailway Company, against the Keokuk
Northern Line Packet Company, in the circuit court of Adams
county, in this State. The writ of attachment was, on the
21st day of April, 1881, levied upon the barge "G. W. Dun-
can, " lying at Quincy, in said county, as the property of the
defendant. Samuel C. Clubb, under the provision of section
29 of our Attachment act, "that any person other than the
defendant claiming the property attached may interplead, "
etc., interpleaded in the case, claiming the property so
attached, under an appointment as receiver of the property
and effects of said packet company, by the circuit court of
St. Louis, in the State of Missouri, in a certain cause in said
court wherein said packet company was defendant. There
was judgment in favor of the interpleader, Clubb, which, on
appeal, was affirmed by the Appellate Court for the Third
District, and the railway company appealed to this court.
The plaintiff in the attachment suit had first filed a repli-
cation to the pleas of the interpleader, traversing the same,
but afterward, on its motion granted by the court, it with-
drew the replication, as having been filed by mistake, and
then moved the court to file its plea in abatement, which had
been intended to be filed instead of the replication, denying
1884.] C, M. & St. P. Ey. Co. v. Packet Co. 319
Statement of the case.
the right to interplead as receiver under the appointment of
a foreign court, which motion the court overruled, whereupon
said plaintiff company filed the plea in abatement, which plea
the court, on motion of said Clubb, ordered to be stricken from
the files. The plaintiff company then refiled its said replica-
tion, upon which issue was joined and the trial had. The
interpleader's first plea alleges the barge was his own prop-
erty at the time of the attachment of it ; the second, that it
was his property as receiver ; the third, that at such time it
was in his possession as receiver.
The facts of the case shown by the evidence are, that at
the October term, 1880, of the circuit court of the city of
St. Louis, in the State of Missouri, Samuel C. Clubb was
duly appointed receiver of the Keokuk Northern Line Packet
Company, an insolvent corporation of that State, with power
and authority to take possession of all the business and prop-
erty of the corporation, and to manage the affairs thereof,
under the orders of the court, the receiver giving bond in the
sum of $200,000 for the faithfifl discharge of his duties. At
the time of such appointment the barge "G. W. Duncan," in
question, was lying at the landing at St. Louis, within the
State of Missouri, and within the jurisdiction of said court.
The receiver immediately took possession of the barge, and
afterward, on the 6th day of November, 1880, he chartered
. the barge to the steamer "E. W. Cole," for a trip up the Mis-
sissippi river and return. The barge was taken, under the
charter, up the river as far as Quincy, Illinois, where it was
detained by the ice, and remained until the levy of the writ
of attachment in this case upon it on the 21st day of April,
1881. At the request of the captain of the steamer "E. W.
Cole," the receiver released him from the charter, and took
possession of the barge at Quincy, and ever since, until the
levy of the attachment, retained such possession, having
a watchman over and guarding the barge against danger.
The receiver made an effort to have the barge removed to
320 C, M. & St. P. By. Co. v. Packet Co. [Jan,
Brief for the Appellant.
St. Louis as soon as the river was clear of ice, having made
a contract with a steamboat line for the purpose, but did not
succeed in having the removal made before the attachment.
The court which appointed the receiver, at its April term,
1881, made an order authorizing the receiver to intervene in
the attachment suit, and take the necessary steps to secure
possession of the barge.
Mr. Geokge W. Fogg, for the appellant :
No one can interplead except he is the owner of the prop-
erty- attached. Sec. 29, Attachment act; City Ins. Co. v.
Commercial Bank, 68 111. 349.
A receiver by his appointment does not become the legal
owner of the property of the debtor. Yeager v. Wallace, 4:4:
Pa. St. 294; Coates v. Cunningham, 80 111. 468; Olney v.
Tanner, 10 Fed. Eep. 104; Boyle v. Townes, 9 Leigh, 158.
The appointment of a receiver does not change the title,
nor create any lien upon the property. Ellis v. Boston H.
and E. R. R. Co. 107 Mass. 1 ? Chase's case, 1 Bland's Ch. 206.
His right is only a right to the possession. It is neither
a jus in re nor a jus ad rem. Story's Eq. sec. 352; State v.
Railroad Comrs. 12 Vroom, 249.
No title is vested in a receiver. Edwards on Eeceivers, 4 ;
Kerr on Eeceivers, 132; Beverly v. Brooke, 4 Gratt. 187;
Singerly v. Fox, 75 Pa. St. 114.
Eeceivers are not possessed as owners. Their possession
is that of the court. High on Eeceivers, sees. 1, 2; Richards
v. People, 81 111. 524; Tremper v. Brooks, 40 Mich. 325;
Andrews v. Smith, 5 Fed. Eep. 837.
The receiver had abandoned the property on April 21,
1881. Cases where lien of attachment, etc., lost by not con-
tinuing in possession in the State : Drake on Attachment,
sec. 431; Corrington v. Smith, 8 Pick. 419; Sanderson v.
Edivards, 16 id. 144; Dick v. Bailey, 2 La. Ann. 974; Conn
v. Caldwell, 1 Gilm. 531.
1884.] C, M. & St. P. Ey. Co. v. Packet Co. 321
Brief for the Appellee.
A receiver can not sue in his own name. 2 Daniell's
Chancery Prac. 1977; High on Keceivers, 210; Freeman v.
Winchester, 10 S. & M. 577; Pitt v. Snowdon, 3 Atk. 750;
Wilson v. Allen, 6 Barb. 542.
Comity will not require rights of foreign citizens to be pre-
ferred to domestic creditors. Zipccy v. Thompson, 1 Gray,
245; Papue v. Lester, 44 Conn. 198; Korer on Inter-State
Law, 39; 2 Kent, 402; Green v. VanBuskirk, 5 Wall. 307;
Bishop on Assignments, sec. 261 ; Burrill on Assignments,
sec. 306.
In the courts of this State a foreign receiver has no stand-
ing as a suitor or interpleader, as owner for the property of
the insolvent debtor found here. Hunt v. C. F. Ins. Co. 55
Maine, 297 ; Hard v. City of Elizabeth, 41 N.J. 1 ; Taylor
v. C. Ins. Co. 14 Allen, 345; 17 How. 322; 11 Fed. Kep.
534; 52 Mo. 19.
Messrs. Sweeney, Jackson & Walker, for the appellee :
Any one may interplead who can maintain trespass, re-
plevin or trover. A sheriff has such a special property in
personal property levied on by him as to give him the right
to maintain those actions. Martin v. Watson, 8 Wis. 315 ;
Boyle v. Townes, 9 Leigh, 158 ; Cannon v. Kinny, 3 Scam. 10 ;
Warner v. Mathews, 18 111. 83; Craig v. Peake, 22 id. 185;
Searles v. Crombie, 28 id. 396; Broadwell v. Paradice, 81 id.
474; Meadowcroft v. Agnew, 89 id. 472; Laclede Bank v.
Keeler, 103 id. 425 ; Brownell v. Manchester, 1 Pick. 233.
The Appellate Court has found there was no abandonment,
which is conclusive. Yet the facts show there was no aban-
donment. Drake on Attachments, sees. 258, 423, 427, 428,
432; Sanderson v. Edwards, 16 Pick. 144; Hemmiiuvay v.
Wheeler, 14 id. 408 ; Bntterfield v. Clemence, 10 Cush. 269.
It has long been recognized as the law, that where a legal
title to personal property has once passed and become vested
in accordance with the lex rei sites, its validity will be recog-
21— 108 III.
322 C., M. & St. P. By. Co. v . Packet Co. [Jan.
Opinion of the Court.
nized everywhere. Wharton on Conflict of Laws, sec. 307 ;
Wales v. Alden, 22 Pick. 245 ; Clark v. Connecticut Peat Co.
35 Conn. 303; Bank of the United States v. Lee et al. 13 Pet.
120 ; Taylor v. Boardman, 25 Vt. 581 ; Boyle v. Townes, 9
Leigh, 158; Singerly v. Fox, 75 Pa. 114; Bagby v. A. R. R.
Co. 86 id. 291; Wilson v. Allen, 6 Barb. 545; Bunk v.
St. John, 29 id. 585 ; Hurd v. C% of Elizabeth, 41 N. J. L. 1.
• Property once vested in a receiver or assignee will not be
disturbed in another State while it is retained by him in pos-
session. Wharton on Conflict of Laws, sec. 353, 353 a; Pond
v. Cooke, 45 Conn. 126; Crapo v. Kelly, 16 Wall. 610; Wales
v. Alden, 22 Pick. 245; Taylor v. Boardman, 25 Yt. 581;
C a gill v. Wooldrldge, 6 Baxter, (Tenn.) 580; McAlpin, Re-
ceiver, v. Jones et al. 10 La. Ann. 552 ; Paradice v. Farmers'
Bank, 5 id. 711.
In the case of insolvent railroad corporations it is the duty
of the receiver to use the cars in the customary course of
business, even though he should temporarily remove them
from the State. Kilmer v. Hobart, 58 How. Pr. 452; M. C.
R. R. Co. v. C. and M. L. S. R. R. Co. 1 Bradw. 399 ; Ellis
v. Boston R. R. Co. 107 Mass. 1; Barton v. Barbour, 3
McArthur, (U. S.) 212; Crapo v. Kelly, 16 Wall. 610.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
We will consider the case as properly presenting by the
pleadings the question of the right to interplead in the suit
in the capacity of receiver.
The general doctrine that the powers of a receiver are
coextensive only with the jurisdiction of the court making
the appointment, and particularly that a foreign receiver
should not be permitted, as against the claims of creditors
resident in another State, to remove from such State the
assets of the debtor, it being the policy of every government
to retain in its own hands the property of a debtor until
-18S4.] C., M. & St. P. By. Co. v. Packet Co. 323
Opinion of the Court.
all domestic claims against it have been satisfied, we fully
concede ; and were this the case of property situate in this
State, never having been within the jurisdiction of the court
that appointed the receiver, and never having been in the
possession of the receiver, it would be covered by the above
principles, which would be decisive against the claim of the
appellee. But the facts that the property at the time of the
appointment of the receiver was within the jurisdiction of
the court making the appointment, and was there taken into
the • actual possession of the receiver, and continued in his
possession until it was attached, take the case, as we con-
ceive, out of the range of the foregoing principles. We are of
opinion that by the receiver's taking possession of the barge
in question within the jurisdiction of the court that appointed
him, he became vested with a special property in the barge,
like that which a sheriff acquires by the seizure of goods in
execution, and that he was entitled to protect this special
property while it continued, by action, in like manner as if
he had been the absolute owner. Having taken the property
in his possession, he was responsible for' it to the court that
appointed him, and had given a bond in a large sum to
cover his responsibility as receiver, and to meet such liability
he might maintain any appropriate proceeding to regain pos-
session of the barge which had been taken from him. [Boyle
v. Townes, 9 Leigh, 158 ; Singerly v. Fox, 75 Pa. 114.) It is
well settled that a sheriff does, by the seizure of goods in
execution, acquire a special property in them, and that he
may maintain trespass, trover or replevin for them.
It is claimed that there was here an abandonment of the
barge by leasing it and suffering it to be taken out of the
State, — that the purpose in so doing was an unlawful one,
and a gross violation of official duty. We do not so view it.
The receiver was, by his appointment, authorized to manage
the affairs of the corporation under the orders of the court.
The business of the corporation was running boats on the
324 C, M. & St. P. Ky. Co. v. Packet Co. [Jan.
Opinion of the Court.
Mississippi river, and chartering the barge for a trip up that
river was but continuing the employ of the barge in the busi-
ness of the corporation, and therefrom making an increase
of the assets to be distributed among the creditors. Brownell
v. Manchester, 1 Pick. 233, decides that a sheriff in the State
of Massachusetts, who had attached property in that State,
did not lose his special property by removing the attached
property into the State of Khode Island for a lawful purpose.
Dick v. Bailey et at. 2 La. Ann. 974, holds otherwise in respect
to property attached in Mississippi, and sent by the sheriff
into Louisiana for an illegal purpose. It is laid down in
Drake on Attachment, (5th ed.) sec. 292, that the mere fact
of removal by an officer of attached property beyond his
bailiwick into a foreign jurisdiction, without regard to the
circumstances attending it, will not dissolve the attachment;
that if the purpose was lawful, and the possession continued,
the attachment would not be dissolved ; but if the purpose
was unlawful, though the officer's possession remained, or if
lawful and he lost his possession, his special property in the
goods would be divested, — citing the two cases above named.
We do not consider that there was any unlawful purpose here
in the chartering and employing of the barge, as was done.
It is insisted the possession of the barge was lost. There
was certainly evidence tending to show possession by the
receiver up to the time of the attachment, and in support
of the judgment of the Appellate Court we must presume
that it found the existence of all the facts necessary to sus-
tain the judgment, where there was evidence tending to show
their existence, and that court's finding of fact is conclusive
upon us. By taking the barge into his possession within the
jurisdiction of the court that appointed him, a special prop-
erty in the barge became vested in the receiver, and it is the
established rule that where a legal title to personal property
has once passed and become vested in accordance with the
law of the State where it is situated, the validity of such title
1SS4/] C, M. & St. P. Ky. Co. v. Packet Co. 325
Opinion of the Court.
will be recognized everywhere. Caniivell v. Sewell, 5 Hurl.
& N. 728; Clark v. Connecticut Peat Co. 35 Conn. 303; Tay-
lor v. Boardman, 25 Vt. 581; Crapo v. Kelly, 16 Wall. 610;
Wafers v. Barton, 1 Cold. (Tenn.) 450.
Under this rule we hold that where a receiver has once
obtained rightful possession of personal property situated
within the jurisdiction of his appointment, which he was
appointed to take charge of, he will not be deprived of its
possession, though he take it, in the performance of his duty,
into a foreign jurisdiction ; that while there it can not be
taken from his possession by creditors of the insolvent debtor
who reside within that jurisdiction. Where a receiver of an
insolvent manufacturing corporation, appointed by a court in
New Jersey, took possession of its assets, and for the purpose
of completing a bridge which it had contracted to build in
Connecticut, purchased iron with the funds of the estate
and sent it to that State, it was decided that the iron was
not open to attachment in Connecticut by a creditor residing
there. [Pond v. Cooke, 45 Conn. 126.) And where C. was
appointed, by a court in Arkansas, receiver of property of
T., a defendant in a suit, and ordered to ship it to Memphis
for sale, and to hold the proceeds subject to the order of the
court, and did so ship it to Memphis, where it was attached by
creditors of T., it was held that C. could maintain an action
of replevin for the property in Tennessee. (Caglll v. Wool-
dridcfe, 8 Baxter, 580.) Kilmer v. Hobart, 58 How. Pr. 452,
decides that receivers appointed in another State, and operat-
ing a railway as such, but having property in their hands as
receivers in New York, can not there be sued, — that an attach-
ment issued in such suit will be vacated.
This is not the case of the officer of a foreign court seek-
ing, as against the claims of creditors resident here, to remove
from this State assets of the debtor situate here at the time
of the officer's appointment, and ever since, and of which he
had had no previous possession. It is to such a case as that,
326 Saup et al. v. Morgan & Co. [Jan.
Syllabus. Statement of the case.
as we understand, that the authorities cited by appellant's
counsel apply, and not to a case like the present, where the
property was, at the time of the appointment of the foreign
receiver, within the jurisdiction of the appointing court, and
there taken into the receiver's possession, and subsequently
suffered by him to be brought into this State in the perform-
ance of his duty, and his possession here wrongfully invaded,
and he seeking but redress for such invasion.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed.
Peter Saup et at.
v.
J. S. Morgan & Co.
Filed at Mt. Vernon January 22, 1884.
1. Taxation — tax on capital stock is a personal tax. Capital stock of
a corporation is personal property, having no ingredient of real estate, and
hence a tax levied on it is clearly a personal tax, and becomes a lien on per-
sonal property only from the issue of the warrant for its collection.
2. Same — lien lost by return of warrant. The lien of a collector's war-
rant upon personal property of the tax debtor for his personal tax expires on
the return of the warrant to the county clerk, and the issue of a subsequent
warrant for the collection of such tax will not affect the rights of an interme-
diate purchaser of personal property from the tax debtor, and he will take
the property free from any lien on the part of the State; and if it is attempted
to be levied on for such taxes, the levy may be perpetually enjoined on bill
by such purchaser.
Writ of Error to the Circuit Court of Alexander county ;
the Hon. David J. Baker, Judge, presiding.
This was a bill in chancery, by J. S. Morgan, S. E. Pea-
body and J. C. Eogers, against Peter Saup, collector of the
county of Alexander, Kobert Wilson, James H. Carter, George
1884.] Saup et al. v. Morgan & Co. 327
Opinion of the Court.
E. Beerwith, W. J. Coppinger, Benjamin F. Logan, William,
M. Lewis, John T. Burketh, and George Michels, collectors,
respectively, of the counties of Pulaski, Johnson, Saline,
Williamson, White, Lawrence, Wabash and Edwards.
Mr. A. G. Damron, Mr. L. M. Bradley, Mr. W. V. Choisser,
and Mr. P. A. Pearce, for the plaintiffs in error.
Messrs. Greene, Burnett & Humphrey, for the defendants
in error.
Mr. Justice Walker delivered the opinion of the Court :
This was a bill to enjoin taxes levied on the capital stock
of the Cairo and Vincennes Bailroad Company. The bill
alleges that defendants in error are the owners of the rolling
stock used in operating the road; that the collectors of taxes
in the various counties through which the road is located,
are threatening to seize and sell their rolling stock to pay
that tax. It is also alleged that: a suit in chancery was
pending in the United States Circuit Court for the Southern
District of Illinois, and that on the 5th of March, 1874, the
court appointed two receivers to take charge of the road and
property; that one of them declined to act, and another was
appointed in his stead on the 12th day of May following;
that they entered upon the discharge of their duties in the,
premises, and commenced operating the road ; that on the
6th day of January, 1875, the receivers petitioned the court
for leave to borrow money to pay taxes due from the road,
and to make improvements permanent in their character;
that leave was granted, and they, on the 1st day of February,
1875, borrowed of complainants the sum of $80,027.85, and
mortgaged the rolling stock to secure its payment ; that the
sum borrowed was not paid at maturity, and complainants
applied for and obtained leave to foreclose the mortgage,
which they did, and became the purchasers on the 28th day
32S Saup et at. v. Morgan & Co. [Jan.
Opinion of the Court.
of April, 1876; that the receivers thereupon applied to the
court for leave to lease the rolling stock thus purchased by
complainants, to be used in operating the road, and leave
was granted, and the lease was made ; that the State Board
of Equalization, at its session in 1873, assessed the tangible
property of the railroad at $1,134,757, upon which the tax
has been paid, and at the same session the board fixed the
valuation of the capital stock of the company at $1,099,887;
that this assessment of capital stock was apportioned among
the counties through which the road was located ; that the
tax was levied and extended by the clerks of these various
counties in the collectors' books, and they were delivered to
them for the collection of the taxes, but they were not col-
lected, and the various collectors returned their tax warrants
in the month of June, 1874, upon which the taxes on the
capital stock for 1873 were extended. It is charged that by
that return all lien on the rolling stock of complainants was
lost and discharged. It is also charged that the taxes on
the capital stock for the year 1873 were not carried forward
to the collectors' warrants for the tax of 1874 for collection.
It is further charged that at the time the chattel mortgage
was executed on the rolling stock, the only tax books in the
hands of the different collectors were the books for the taxes
of 1874, and upon them there was no entry of capital stock for
the year 1873 ; that in April, 1876, when the chattel mortgage
was foreclosed and complainants purchased the rolling stock,
the collectors' warrants of 1875, and no others, were in the
hands of the collectors, and the taxes on the capital stock
for the year 1873 were on none of the collectors' warrants;
that the tax warrants for 1874 and 1875 were returned in
the month of June following their receipt, but the collectors' ,
warrants delivered to these various collectors in the month
of December, 1876, each embraced this tax on the capital
stock for 1873, and they were commanded to collect the same
1884.] Saup et at. v. Morgan & Co. 329
Opinion of the Court.
by these warrants, and the collectors were threatening to
seize and sell their rolling stock for the satisfaction of that
tax. On a hearing in the circuit court the relief sought was
granted, and a perpetual injunction was decreed, and the
People bring the record to this court and assign various
errors, only a portion of which we deem sufficiently import-
ant to require consideration.
Capital stock is personal, and not real, property. It has
no ingredient of real estate, but it has every element of per-
sonalty. It is as much personal as notes or bonds. Not
having a single element of realty, a tax levied on it is indis-
putably a personal tax. The 10th section of article 11, of
our constitution, declares that the rolling stock and other
movable property of any railroad company or corporation in
this State shall be considered personal property, etc. De-
fendants in error purchased the rolling stock after the return
of the warrant to the county clerk, and after the lien had
expired, and consequently free from the lien. Having pur-
chased it free from the lien, it could not be revived on this
property in the hands of a purchaser by issuing another tax
warrant in 1876. No doubt the subsequent warrant became
a lien on the personal property owned by the railroad at the
time it was issued, but not on the property of other persons.
The statute will not bear a construction that the lien on per-
sonal property is perpetual, and can be revived at any time
by issuing a new collector's warrant against property after it
has been sold free from the lien.
The entire record considered, we fail to find any error for
which the decree of the circuit court should be reversed, and
it is affirmed.
Decree affirmed.
330 Douthett v. Winter. [Jan.
Syllabus. Brief for the Appellant.
Ella Douthett
v.
Samuel Winter.
Filed at Mt. Vernon January 22, 1884.
1. Homestead — exemption from sale under judgment for taxes. . Beal
estate occupied as a homestead is exempt from levy and sale under execution
issued upon a judgment in personam against the debtor, notwithstanding
such judgment may be for taxes on the same property due the State or county
by the defendant therein. That part of section 3 of the act relating to exemp-
tions, which provides that no property shall be exempt from sale for non-
payment of taxes, etc., has application only to proceedings in rem against the
property in which two years' redemption is allowed, and not to sales under a
judgment in personam, except where it is based on a debt or liability for the
purchase money or improvements.
2. Taxes — lien of, not enforcible in ordinary action. The lien given
by law upon land for taxes due thereon, whatever its force and scope may.
be, can not be enforced in an ordinary action at law by the county or State
against the tax debtor. That can only be done by bill in chancery, under the
statute.
Appeal from the Appellate Court for the Fourth District ; —
heard in that court on appeal from the Circuit Court of
Effingham county; the Hon. Thomas S. Casey, Judge, pre-
siding.
Mr. Henry B. Kepley, for the appellant :
A tax on real estate is a lien thereon from the first day of
May in the year it is levied, prior to all other liens, demands,
or claims whatever, and a title based upon a valid sale under
a judgment rendered for such tax against the owner, takes
precedence of, and is not subject to, the right of homestead
in, or other liens. Eev. Stat. chap. 120, sec. 253; People v.
Stahl, 101 111. 346; Cooper et al. v. Corbin et al. 105 id. 224;
Batons Appeal, 83 Pa. St. 152; Dunlap v. Gallatin County,
15 111. 7; Dennis v. Maynard et al. id. 477; Almy v. Hunt,
48 id. 45 ; Binkert v. Wabash By. Co. 98 id. 206 ; Rogers v.
1884.] Douthett v. Winter. 331
Brief for the Appellee.
Dickey, 1 Gilm. 645 ; Cooley on Taxation, 305, 306, and cases
cited; Burroughs on Taxation, -871, 374; Stokes v. State of
Georgia, 45 Ga. 412; People v. Biggins, 96 111. 481.
Section 253 of the Kevenue law, and section 3 of the Ex-
emption law, taken either separately or together, effectually
and wholly exclude all right of homestead in a case like this.
A title based on a sheriff's sale of real estate under a judg-
ment for the purchase money thereof, takes precedence of
the right of homestead, even when the fact that it is for the
purchase money does not appear from the judgment, but has
to be shown by extrinsic evidence, and that the homestead
exemption may be impeached and defeated by a purchaser
at a sheriff's sale, by proof that the sale was under a judg-
ment for a demand that is within the exceptions of the Statute
of Exemptions. People v. Staid, 101 111. 346 ; White v. Clark
et al. 36 id. 532 ; Durham v. Bostick, 72 N. C. 356 ; Freeman
on Judgments, 180, 181 ; Stevenson v. Marony, 29 111. 532.
The same principle that applies to a demand for purchase
money will certainly apply to a demand for taxes.
When a debt secured by lien is reduced to a judgment, the
lien is not lost, but follows the indebtedness in its new form
so long as it can be identified. Eschback v. Pitts, 6 Md. 71 ;
Wayman et al. v. Qochran, 35 111. 152; People v. Stahl, 101
id. 346 ; Almy v. Hunt, 48 id. 45 ; Ober v. Gallagher, 93 U. S.
206; Jones on Mortgages, sees. 1215, 1220, 1221; Dunkley
v. Van Buren, 3 Johns. Ch. 330.
Mr.. B. F. Kagay, and Mr. John C. White, for the appellee :
While the State may proceed in rem against land for taxes,
or bring a personal action against the tax debtor, at its elec-
tion, yet each remedy must be in a manner peculiar to itself,
and by the means which the law has made applicable and
appropriate to the one chosen. A personal judgment for
taxes can not operate both in personam and in rem at the
same time. People v. Stahl, 101 111. 346.
332 Douthett v. Winter. [Jan.
Opinion of the Court.
Homestead, under the law of 1851, is exempt from sale
under a judgment for a tort, the same as a debt. {Convoy
v. Sullivan, 44 111. 451.) Also, from a sale under a judg-
ment for a fine and costs rendered in a criminal prosecution.
Loomis v. Gerson, 62 111. 13.
The clause in the Homestead Efxemption act that the ex-
emption should not apply to sales for non-payment of taxes
or assessments, or for debt, etc., for the purchase or improve-
ment thereof, was intended to and does apply only to judg-
ments and decrees in personam. Douthett v. Kettle, 104 111.
356: Humes et al. v. Gossett, 43 id. 299.
This was a proper matter of defence to the action of forcible
detainer, and the judgment of the court in refusing a writ of
possession was correct. Connor v. Nichols, 31 111. 148 ; Smith
v. Miller, id. 157; Thornton v. Boy den, id. 200.
Mr. Justice Scott delivered the opinion of the Court :
This was an action of forcible detainer, brought by Ella
Douthett, against Samuel Winter, before a justice of the
peace, to recover possession of a tract of land described by
its numbers in the complaint filed. On the trial before the
justice of the peace plaintiff recovered a judgment, but on
defendant's appeal to the circuit court, wnere a trial de novo
was had, judgment was rendered for defendant. The latter
judgment was affirmed in the Appellate Court for the Fourth
District, and a majority of the judges of that court having
certified the case, in their opinion, involves questions of law of
such importance, on account of collateral interests, it should
be passed on by the Supreme Court, plaintiff brings the case
to this court on appeal, as is authorized to be done by the
Practice act.
It is not controverted, demand in writing was made on
defendant for the possession of the premises in controversy,
and that he refused to surrender possession. Plaintiff's right
1SS4.] Douthett v. Winter. 333
Opinion of the Court.
to possession is based on a sheriff's deed to the property,
made in pursuance of a sale on an execution issued on a
transcript judgment from a justice of the peace, which had
been filed in the office of the clerk of the circuit court, as the
statute provides may be done. No objection is taken to the
regularity of the sheriff's deed that in any essential degree
affects its validity, or to the regularity of the proceedings
anterior to the making of the deed. It is admitted the prem-
ises described in the sheriff's deed are the homestead of
defendant, and have been occupied by him as such for the
last twenty years past, and the defence insisted upon is, the
premises were not subject to sale under the execution issued
on the transcript judgment in evidence, unless his homestead
therein had first been set off to him, according to the pro-
visions of the statute in that behalf, which had not been
done. On the other hand, plaintiff maintains the judgment
under which the property was sold was recovered for forfeited
taxes due on the property itself, and therefore the property
is liable to levy and sale under this judgment, becaitse of
section 3 of the Homestead act, which provides, "no prop-
erty shall, by virtue of this act, be exempt from sale for
non-payment of taxes or assessments, or for any debt or
liability incurred for the purchase money, or improvements
thereon." The position taken is, as this judgment was
recovered for forfeited taxes due on the property, the subse-
quent sale under the execution was in law a "sale for the
non-payment of taxes," as those terms are used in the "Home-
stead act," and hence the premises, although the homestead
of defendant, are not exempt from sale under the execution.
The vice of the argument on this branch of the case lies in
the assumption the sale at which defendant's property was
sold was a "sale for the non-payment of taxes." Such is not
the fact. It was a sale on an execution issued on a personal
judgment recovered against defendant in a civil action. It is
true the judgment was recovered for taxes due from defend-
334: Douthett v. Winter. [Jan.
Opinion of the Court.
ant to the county of Effingham, and, doubtless, for the taxes
due from defendant on the property in controversy. This
court has decided in Douthett v. Kettle, 104: 111. 356, whether
the subject matter of the suit was taxes, or a promissory note,
can make no difference. It was further held in that case, a
sale on an execution, although issued on a judgment recov-
ered for taxes, is not a sale for the "non-payment of taxes,
in the ordinary acceptation of that term." A "tax sale," or,
what is the same thing, a "sale for the non-payment of taxes,"
has a distinct and well defined meaning. It means a sale
made in a proceeding "in rem," and was so generally under-
stood when the Homestead law was enacted. It will be con-
sidered the phrase, a "sale for the non-payment of taxes,"
was employed in the statute in the sense it was commonly
understood at the time, and that was, as has been seen, a sale
made in a proceeding in rem, and not a sale on an execution
issued on a judgment in personam. If a sale under an exe-
cution on a judgment recovered for taxes was a "tax sale,"
or a "sale for the non-payment of taxes," the defendant
would clearly be entitled to a period of two years in which to
redeem his property from such a sale. Being a constitu-
tional provision, the owner could not be deprived of that priv-
ilege if his property was sold for the "non-payment of taxes."
But that is not the case. This court has decided in Douthett
v. Kettle, the law in regard to redemptions from tax sales has
no application to a sale on execution issued on a judgment
recovered for taxes, but the redemption must be made as is
required to be done in other execution sales of real property.
Another ground relied on is, the statute making taxes upon
real property a prior and first lien on such property, superior
to all other liens and incumbrances, also makes it a supe-
rior lien over any right of homestead secured by the statute.
Whatever may be the force and scope of the lien given by
law to secure the payment of taxes, it is a sufficient answer
to the position taken to say this is not a proceeding to enforce
1884.] Douthett v. Winter. 335
Opinion of the Court.
any such lien. That can only be done by bill in chancery,
under the statute, as was done in Biggins v. The People,
106 111. 270. The original suit by the county of Effingham
against the defendant in this suit, was one of the statutory
remedies given for the collection of taxes owing by the citi-
zen to the State or the county, as any other demand could
be collected. Taxes are sometimes treated as a debt owing
by the citizen to the State, and it was for that reason it was
thought a suit at common law might be maintained for the
collection of taxes, independently of any enabling statute.
It is to be noticed, also, that section 3 of the Home-
stead act has not authorized the sale of the homestead on
account of any debt or liability incurred for taxes due to the
State or county, or to any municipality, as it does in case of
a debt or liability incurred for the purchase money of the
property, or for any improvements thereon. The provision
is, the homestead shall not be exempt from a "sale for the
non-payment of taxes." That is a very different thing from
a sale under a judgment recovered on a demand or liability,
at common law or otherwise, for taxes owing by the party to
the county or the State. The legislature has not seen fit to
subject the homestead to sale on such a judgment, as it has
done under a judgment recovered for a debt or liability for
the purchase money of the property, or for any improvements
thereon, and this court has no desire or rightful authority to
enlarge the provision of the statute in that respect by judi-
cial construction.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Walker and Scholfield, JJ. : We do not concur either in
the reasoning or the conclusion in this case.
336 Jordan v. Davis et al. [Jan.
Svllabus.
Eoscoe G. Jordan
v.
E. F. Davis et al.
Filed at Springfield Oct. 1, 1883 — Rehearing denied January Term, 1884.
1. Appeal — as to amount or value involved — in forcible detainer. For-
cible detainer was brought by a lessee against a prior tenant in possession.
T,he plaintiff's claim to the premises was under a lease from the owner,
for a term of five years, from March 1, 1882, at the rent of $1650 per year.
The defendant's claim was under a paper purporting to be a lease from the
same lessor, covering the same term, for the rent of $1500 per year. On
appeal to the Appellate Court a judgment for the defendant was affirmed.
On a further appeal to this court, it was held the amount or value involved
in the suit exceeded $1000, and on that ground jurisdiction of the appeal was
entertained.
2. Deed — delivery — effect of placing in hands of grantee. It is essen-
tial that a deed, lease, or other instrument, should be understood by the
parties to be completed and ready for delivery, in order to have the mere
placing of it in the hands or possession of the grantee or his agent construed
into a delivery.
3. Contract — delivery essential — question of intent. The delivery of
a written contract is indispensable to its binding effect, and such delivery is
not conclusively proved by merely showing the placing of the paper by one
of the alleged contracting parties in the hands of the other. Delivery is a
question of intent, and it depends on whether the parties at the time meant
it to be a delivery to take effect presently.
4. Same— placing lease in hands of lessee to procure a guaranty, no
execution or delivery. Where the owner of land had a written lease drawn,
which was signed by the parties, and left with the lessee to procure an in-
dorsement of a guaranty for the payment of the rent and to have a duplicate
drawn, it was held, this was no execution or delivery of the lease as the deed
of the lessor, and could not be such until the guaranty of the rent had been
obtained, and that the subsequent communication of the lessee to the lessor
of the former's inability to obtain the guaranty, terminated the negotiation
and the initiatory proceeding in making the lease, and that a guaranty subse-
quently obtained availed nothing without the assent of the lessor.
5. Evidence — parol, to rebut presumption of delivery of deed. While
it is not competent to contest a deed by parol evidence when it has once
taken effect by delivery, it is always competent by such evidence to show
that the deed, though in the hands of the grantee, has never been delivered.
1884.] Jordan v. Davis et al. 337
Brief for the Appellant.
For this purpose the original verbal agreement may be shown, — as, that a
written guaranty for the payment of rent was to be procured and indorsed
on a lease before it should take effect, and that it was placed in the lessee's
hands merely to enable him to get such indorsement.
Appeal from the Appellate Court for the Third District ; —
heard in that court on appeal from the Circuit Court of
McLean county ; the Hon. Owen T. Keeves, Judge, presiding.
Messrs. Tipton & Tipton, for the appellant :
This is a proceeding to recover possession of $5000 worth
of property. It is not an action ex contractu, and section 25,
chapter 37, and section 91 of the Practice act, in the Eevised
Statutes, does not affect the right to an appeal or writ of
error. Until a duplicate lease was drawn, and the guaranty
indorsed thereon, no binding agreement existed. Boyd v.
Hind, 36 Eng. L. & Eq. 366; Govener v. Petch, 28 id. 479;
Townsend v. Hubbard, 4 Hill, 351 ; Townsend v. Coining, 23
Wend. 443; Fish v. Levine, 16 La. Ann. 29; Dodge v. Hop-
kins, 14 Wis. 630 ; Crane v. Part-land, 9 Mich. 493 ; Morrill v.
Tahama M. and M. Co. 10 Nev. 125; Tewksbury v. O'Connell,
21 Cal. 6.
After notice of inability to procure the guaranty as agreed,
Pearce had the right to treat the negotiation as ended, and
lease to appellant. Parsons on Contracts, 477 ; Baker v.
Johnson, 4 Wheat. 226 ; Carr v. Duvall, 14 Pet. 77 ; Jenness
v. Mt. Hope Iron Co. 53 Mo. 20 ; B. and M. S. Ry. Co. v.
Town of Unity, 62 Mo. 148; Fox v. Turner, 1 Braclw. 155.
A delivery is indispensable to the validity of a lease. Ben-
ton v. Martin, 52 N. Y. 570; Chandlers. Chandler, 21 Ark.
95 ; Hing v. Woodbridge, 34 Vt. 565 ; Crane v. Partland,
9 Mich. 493 ; Chateau v. Sydam, 21 N. Y. 181 ; Cullender v.
Cosgrove, 17 Conn. 1; Burson v. Huntington, 21 Mich. 416;
Morrill v. Tahama M. and M. Co. 10 Nev. 129.
The copy of the lease being in the possession of appellee
Davis, was but prima facie evidence of its delivery, (Billings
22—1C8 It.l.
338 Jordan v. Davis et al. [Jan.
Brief for the Appellees. Opinion of the Court.
v. Stark, 15 Fla. 297,) and may be shown by proof. Tunison
v. Chamblin, S8 111. 378.
The question of delivery is one of intention, and the posses-
sion of the instrument is but prima facie evidence of delivery.
Billings v. Stark, 15 Fla. 297; Hill v. Ege, 79 Pa. St. 15;
Gould v. Day, 94 U. S. 405 ; Carries v. Piatt, 41 N. Y. 435.
If the deed is merely left with the grantee for examination,
or if anything more remains to be done to perfect it, there is
no delivery. Stiles v. Probst, 69 111. 382 ; Groves v. Dudley,
20 N. Y. 76.
Mr. H. G. Beeves, for the appellees :
This suit does not involve $1000, but simply the right of
possession to land. The recovery of rent or damages is not
involved, and hence the judgment of the Appellate Court is
final. McGuirk v. Burry, 93 111. 118; Preston et al. v. Gahl,
94 id. 586; Sehofield et al. v. Pope, 104 id. 130.
This case should be affirmed, because justice has been
done. If Pearce, before he and Davis went into 'Squire
Shepherd's office to have the contract drawn and executed,
said to Davis he wanted Snyder's guaranty, Davis' failure
to obtain this guaranty does not invalidate the written con-
tract under seal. Pickrel v. Rose, 87 111. 263 ; Fitzgerald v.
Staples, 88 id. 234; Weaver v. Fries, 85 id. 356.
If Pearce and Davis agreed, after the written lease was
signed, and after Pearce had ordered the 'Squire to deliver the
same to Davis, that Snyder's guaranty should be obtained,
this would be an agreement without consideration, and would
not invalidate the sealed instrument.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
This was an action of forcible detainer, brought by Jordan,
against Davis and one Twoma, a tenant under Davis. One
Pearce was the owner of the premises. He had previously
18S4.] Jordan v. Davis et al. 339
Opinion of the Court.
leased them to Davis for a term of five years, which would
expire March 1, 1882, the payment of the rent having been
guarantied by one Snyder, the father-in-law of Davis, the
guaranty being indorsed on the lease. Jordan's (the plain-
tiff's) claim to the premises was under a lease from Pearce,
the owner, bearing date December 2, 1881, for the term of
five years, from March 1, 1882, at the rent of $1650 per year.
Davis' (the defendant's) claim was under a paper writing
purporting to be a lease from Pearce to Davis, made October
6, 1881, for the term of five years, from March 1, 18S2, for
the rent of $1500 per year. There was judgment for the
defendants, which was affirmed by the Appellate Court for
the Third District, and the plaintiff appealed to this court.
A motion was made to dismiss the appeal for want of juris-
diction of this court. The amount or value involved in the
suit appears to be more than $1000, and on this ground we
are of opinion this court may properly entertain jurisdiction
of the appeal. See Cummins v. Holmes et al. 107 111. 552.
The point of contest, on the merits of the case, is whether
the paper writing of October 6, 1881, purporting to be a lease
from Pearce to Davis, was ever delivered by Pearce to Davis,
so that it became a valid lease binding upon Pearce. Pearce
resided in Kentucky, and there was evidence tending to show
that on October 6, 1881, Pearce met Davis at Chenoa, in this
State, where the premises are situate, and made an agree-
ment with Davis to lease to him xthe premises for five years,
from March 1, 1882, at the rent of $1500 per year, the pay-
ment of the rent to be guarantied by Snyder, the father-in-
law of Davis, by Snyder's guaranty in writing indorsed on
the lease, as it had been on the former lease ; that they went
into the office of a scrivener to have the lease drawn in dupli-
cate ; one was drawn and signed by Pearce and Davis, and
Pearce, being about to leave on a train for Chicago, could not
wait for the duplicate to be drawn, and it was left to be drawn
by the scrivener, and then both be handed to Davis, which
340 Jordan v. Davis et al. [Jan.
Opinion of the Court.
was done; that Snyder was not at home at the time, and
Davis was to see him and get his signature to a guaranty
of payment of the rent; that on November 11, 1881, Davis
wrote to Pearce that it was impossible for him to get the
guaranty, and that the land was at Pearce's disposal, if
Pearce did not consider Davis responsible, and at the same
time Snyder wrote Pearce that he would not guaranty the
payment of the rent ; that no further communication took
place between Pearce and Davis, except that Pearce testifies
that on receipt of Davis' letter he wrote to Davis that their
trade was off, and he had authorized his agent, Mr. Bishop,
to rent the land to a Mr. Jordan, and on November 30, 1881,
Snyder mailed to Pearce a copy of the lease, with an indorse-
ment upon it of his guaranty of payment of the rent, which
was received by Pearce and returned by him to Snyder ; that
on December 2, 1881, the lease from Pearce to Jordan was
made through Mr. Bishop, the agent of Pearce in this State.
At the trial the plaintiff asked the following instruction to
the jury:
"That if the lease of October 6, 1881, was signed and left
with the defendant for the purpose of procuring a written
guaranty, and signed by Snyder, and then to be forwarded
to Pearce, and that the same was not to become a binding
contract between the parties until the same was so guaran-
tied, then before Pearce was bound to regard the contract as
completed he was entitled to a valid and binding lease guar-
antied by Snyder ; and if not made in a reasonable time, or
on notice by the defendant that he could not procure the
guaranty of Snyder, and that he might regard the contract
at an end unless he would let him have it without security,
this would end the contract, unless Pearce afterwards agreed
to let him have it without security. "
This, with other instructions of like purport, was refused.
In this we think there was error. The delivery of a written
1884.] Jordan v. Davis et al. 341
Opinion of the Court.
contract is indispensable to its binding effect, and such de-
livery is not conclusively proved by showing the placing of
the paper by the alleged contracting party in the hands of
the other. Delivery is a question of intent, and it depends
whether the parties at the time meant it to be a delivery to
take effect presently. Upon the hypothesis of the refused
instruction, which there was evidence tending to prove, there
was no completion of the contract to lease until there had
been a guaranty by Snyder of payment of the rent, and the
leaving of the lease, signed by Pearce, in the hands of Davis
for him to get the indorsement of the guaranty of the rent
upon it, was not an execution or delivery of the lease as the
deed of Pearce, and the execution of it would not be per-
fected and the delivery of it made until the guaranty of pay-
ment of the rent had been obtained. Mr. Washburn, in his
treatise on Eeal Property, (4th ed.) vol. 3, pp. 292, 293, upon
this subject, says : "It is an essential prerequisite that the
instrument in question should be understood by the parties
to be completed and ready for delivery, in order to have a
mere placing it in the hands or possession of the grantee or
his agent construed into a delivery. " The subsequent refusal
of Snyder to guaranty the payment of the rent, and Davis'
communication to Pearce of his inability to obtain the guar-
anty, terminated the negotiation, and the initiatory proceed-
ing in the making of a lease, and the subsequently obtained
guaranty, availed nothing without the assent of Pearce.
The trial of the cause in the circuit court proceeded upon
an incorrect theory. The following instruction was given for
the defendants :
"That if the jury believe, from the evidence, that the lease
of October 6, 1881, admitted in evidence, was executed by
Pearce and by Davis, and unconditionally delivered to Davis
either by Pearce, or by Shepherd* under Pearce's direction,
then such lease was not made to Davis upon condition that
3-12 Jordan v. Davis et al. [Jan.
Opinion of the Court.
he would procure J. K. Snycler to guaranty the payment of
the lease ; that no such condition is found in the lease, and
no verbal agreement to give such guaranty, if made prior to
the execution of the lease, would be of any effect as against
the terms of the lease."
This instruction, as applied to the facts in the. case, wxas
false and misleading. Shepherd was the scrivener who drew
the lease. The testimony was that the contract for the lease
was made between Pearce and Davis themselves before they
came to the office of Shepherd to have the lease drawn.
This being so, it might well be, as testified by Shepherd, that
a,t the time the lease was delivered into the hands of Davis,
in Shepherd's office, nothing was said about obtaining the
guaranty. But that was understood between the parties, if
it had been arranged for before, as part of the contract, and
might properly be shown, not as contradicting the contents
of the writing, but as showing that the lease was never deliv-
ered,— that it was not placed in Davis' hands as the act and
deed of Pearce,- but for the purpose of Davis getting upon it
the indorsement of guaranty of the rent, when, only, it would
be the lease of Pearce. The prior arrangement between
Pearce and Davis for the lease would be part of the whole
transaction, and it would be as if the terms of that arrange-
ment had been repeated over at the time the lease was left in
the hands of Davis. This instruction carried the wrongful
idea to the jury that the condition for the guaranty of the
rent, to be of avail, should have been embodied in the lease,
and that a verbal agreement therefor, made prior to the
drawing of the lease, could not be shown, as it would be con-
trary to the terms of the lease. The verbal agreement for
the lease was not offered in contradiction of the terms of
the lease, but to disprove delivery. The question of delivery
is something aside from the writing in an instrument. It
depends upon proof by parol, and the evidence of delivery
18S4.] Marion County v. Lear. 343
Syllabus.
arising from possession of the deed by the grantee may be
rebutted by the same kind of evidence by parol. Further
on, at the conclusion of the paragraph from which the above
quotation is made, the same learned author says : "While,
therefore, it is not competent to control a deed by parol evi-
dence when it has once taken effect by delivery, it is always
competent, by such evidence, to show that the deed, though
in the grantee's hands, has never been delivered."
For error in refusing and giving the instruction, as above,
by the circuit court, the judgment of the Appellate Court is
reversed and the cause remanded.
Judgment reversed.
Mr. Justice Scott : I dissent from this opinion.
Marion County
v.
Isaiah D. Lear.
Filed at ML Vernon January 22, 1884.
1. Fees and salaries — sheriff's fees in criminal cases in case of
acquittal — liability of county. Section 19, chapter 53, of the Revised Stat-
utes, entitled "Fees and Salaries," requiring counties to pay sheriffs their
fees in criminal cases where the defendants are acquitted, etc., and to make
up any deficiency in their salaries, is in all respects consistent with the con-
stitution, and a valid enactment.
2. A county board can not refuse to pay a sheriff his fees in criminal
cases, where the defendants are not liable for costs, if such fees are necessary
to make up the officer's salary; but where his salary has been collected and
received in full, the county is not required to allow him such fees to be ap-
plied upon arrearages in his deputy hire and other expenses. The words,
"actually collected," in section 10, article 10, of the -constitution, are intended
to prevent the legislature from empowering the county to take fees due as
so much revenue, and compensating the officers by appropriation out of the •
general revenues of the county actually in the treasury.
344 Marion County v. Lear. [Jan.
Brief for the Appellant.
3. A sheriff's salary was fixed at $1000 per annum, and he was by a sepa-
rate order allowed $800 per annum for deputy hire, expenses, etc. He col-
lected for the two years he was sheriff, from fees earned by him, $2580.28,
before applying to the county board for an allowance for fees earned in
criminal cases: Held, that the county board properly refused the allowance.
The sheriff can collect of the county only in case of a deficiency in his
"salary," which is his personal compensation.
4. Police regulations — by whom to be enforced. "Whether the bur-
den of enforcing police regulations, in the absence of express constitutional
restrictions, shall be borne by the State at large or be devolved upon the
local municipalities, is a mere question of public policy, upon which the
determination of the General Assembly is conclusive.
5. County — legislative control over. A county is a public corporation,
which exists only for public purposes connected with the administration of
the State government, and it and its revenues are alike, where no express
constitutional restriction is found to the contrary, subject to legislative con-
trol.
Appeal from the Circuit Court of Marion county ; the Hon.
Amos Watts, Judge, presiding.
Mr. C. E. Jennings, and Mr. M. Sch^ffer, for the appel-
lant :
So much of section 19, chapter 53, of the Ee vised Statutes,
as provides, "in all criminal cases where the defendant shall
be acquitted, or otherwise legally discharged, without pay-
ment of costs, the sheriff shall be paid such fees from the
county treasury," is in conflict with section 10, article 10,
of the constitution of 1870. This section of the constitution
has been before this court in numerous cases for construction,
and while section 19, chapter 53, has never been questioned
in this court, it is believed the construction given to the clause
of the constitution is in harmony with the position assumed
by Jennings v. Fayette County, 97 111. 420 ; Daggett v. Ford
County, 99 id. 334; Cullom v. Dolloff, 94 id. 331 ; Briscoe v.
Clark County, 95 id. 309. '
Prior to the adoption of the constitutional provision the
sheriff took the office cum onere, paid for his own stationery,
1884.] Marion County v. Lear. 345
, Brief for the Appellee.
fuel and other expenses, and received no pay from the county
treasury, except for services rendered the county directly.
Bryncr v. Board of Supervisors, 24 111. 194; Irvin v. Alexan-
der County, 63 id. 528 ; Edgar County v. Mayo, 3 Gilm. 82 ;
Vise v. Hamilton County, 19 111. 78.
It is evident that the object of this provision was to limit
the compensation of the officer according to the class of his
county, and not to increase the same. It could not have been
intended to change a former self-supporting office to one not
self-supporting, but a burden upon the people. This is clearly
evinced by declaring that his "compensation shall be paid
only out of the fees actually collected. " This view, it is con-
fidently believed, is sustained in the cases of Jennings v.
Fayette County, and Daggett v. Ford County, supra.
It has always been opposed to the policy of our laws to pay
officers from the county treasury, especially in criminal cases.
Vise v. Hamilton County, supra; Edgar County v. Mayo, supra;
Crawford County v. Sperry, 21 111. 288.
Aside from any other reasons, the plaintiff can not recover
because he has already received his own personal salary in
full. He can not collect under the statute, from the county,
deputy hire and office expenses. The words "compensation"
and "salary" are used in the statute as synonymous terms.
Crawford County v. Lindsay, 11 Braclw. 261.
Mr. Henry C. Goodnow, for the appellee :
Jennings v. Fayette County, 97 III. 420, is not just like this.
There the sheriff claimed the county was bound to pay him
for all of his compensation he could not collect, whether from
fees or not. The court properly held that the county could
not pay him out of any fund other than fees. Here the sheriff
is seeking to collect the fees allowed him and earned. This is
not asking for payment of compensation out of the treasury
other than in fees earned by him, and which fees the county
is liable for when he fails to collect from other sources.
346 Marion County v. Lear. [Jan.
Opinion of the Court.
The word "salary" is not used in section 10, article 10,
but the word "compensation," and hence the word "salary"
in the statute has no force, but evidently means compensa-
tion. The constitution requiring the board to fix the sheriff's
compensation with clerk hire, evidently means clerk hire or
deputy hire is a part of the sheriff's compensation, and hence
the criminal fees can be applied to the payment of the deputy
hire as well as salary. Kilg.ore v. People, 76 111. 552.
Appellant claims that the fees under section 19 can only be
applied to the payment of the sheriff's personal services, but
the well known principle that he who does through another
does it himself, is applicable here, as the sheriff is responsible
for his deputy. The board may fix the compensation of the
sheriff to include deputy hire, or may fix the deputy hire
separate. Wheelock et al. v. People, 84 111. 551.
Mr. Justice Scholfield delivered the opinion of the Court :
Appellee presented a claim to the board of supervisors
of Marion county for balance due him for compensation for
services as sheriff, and for clerk hire, stationery, fuel, etc.,
to be paid by the county out of certain fees earned by him in
criminal cases, where the defendant was acquitted or other-
wise legally discharged without the payment of costs. The
board of supervisors disallowed his claim, and he appealed
from their decision to the circuit court of that county, and
that court rendered judgment thereupon in his favor. This
appeal is from that judgment, and it is prosecuted directly
to this court upon the ground that the validity of a statute
is involved in the decision of the case.
The statute in question is so much of section 19, chapter
53, of the Kevised Statutes of 1874, entitled "Fees and Sala-
ries," as provides as follows: "In all criminal cases where
the defendant shall be acquitted, or otherwise legally dis-
charged, without payment of costs, the sheriff shall be paid
such fees from the county treasury : Provided, that no such
1SS4.] Marion County v. Lear. 347
Opinion of the Court.
fees shall be paid to the sheriff from the county treasury
when the fees collected by him during such year shall equal
the compensation or salary allowed him by the county board ;
And, provided, further, that no more of such fees shall in any
case be paid from the county treasury than shall be sufficient,
with the fees collected, to make the salary or compensation
of said sheriff." The claimed invalidity is because of its
repugnance to that part of section 10, article 10, of the con-
stitution of 1870, which is in these words: "The county
board * * * shall fix the compensation of all county
officers, with the amount of their necessary clerk hire, sta-
tionery, fuel and other expenses ; and in all cases where fees
are provided for, said compensation shall be paid only out
of, and shall in no instance exceed, the fees actually col-
lected."
The contention of appellant is, the language, "shall be paid
only out of, and shall in no instance exceed, the fees actually
collected," amounts to a positive prohibition that the com-
pensation shall, in any instance, be paid out of the county
treasury, — that the words "actually collected" can have ap-
plication only to cases where the sheriff shall collect the fees
otherwise than pursuant to appropriation out of the county
treasury. This is plausible, but, in our opinion, nothing
more. In a case where the duty of the county to pay fees
is conceded, there could surely be no question, after it had
paid and the sheriff had received such fees, but that he had
"actually collected" them from the county, for the mode of
enforcing or effecting a collection, when it shall have been
successful, can by no possibility affect the fact that money
has been "actually collected." To illustrate: Suppose the
county were liable to pay costs in suits in which it is an un-
successful party, and that it is defeated in a suit, and judg-
ment rendered against it for costs. The sheriff makes proper
demand for the payment of the judgment, and through the
proper process, and by the proper officer, payment of the
34:8 Marion County v. Lear. [Jan.
Opinion of the Court.
judgment and costs is made to* the sheriff. It is impossible
to discriminate between this and other cases where the sheriff
has collected a judgment, as to the fact that he has "actually
collected" the judgment and costs. But it must follow that
if, when costs are thus paid to the sheriff, they are literally
"actually collected" by him, within the letter and spirit of
the constitution, the county can not, -by refusing to discharge
its duty in the payment of costs, thus preventing the sheriff
from actually collecting them, interpose such failure as a
reason why it is not liable to pay them. The true theory of
the application, in cases like the present, is not to have the
county pay a salary to the sheriff, but to pay him certain costs
which it owes, and which it is its duty to pay to him, in the
given contingency, and then, when they are paid, he applies
them, as well as other costs "actually collected," to the pay-
ment of his salary, and gives the county credit on account
thereof in his settlement with it. It follows, of necessity,
that in such attempt to enforce collection of costs it is com-
petent for the county to show, in defence, that the contingency
in which they are collectible does not exist. The purpose of
the use of the words, "actually collected," in the connection
in which they here occur, instead of being, as counsel con-
tend, to discriminate between costs payable by an individual
and private corporation and those payable by the county,
was to prevent the legislature from empowering the county
to take fees due, as so much revenue, and compensating the
officers by appropriations out of the general revenues of the
county actually in the treasury.
If we are thus far correct, it only remains, on this point,
to inquire whether, apart from the language quoted from
section 10, article 10, of the constitution of 1870, it was
competent for the General Assembly to impose upon counties
the duty of paying costs in the cases specified in the statute.
We assume that no one would question the power of the
General Assembly to impose such a duty upon the State. It
1884.] Marion County v. Lear. 349
Opinion of the Court. .
would be a mere question of policy with reference to the en-
forcement of the Criminal Code, — an undoubted exercise of
the police power. Whether the harden of enforcing police
regulations, in the absence of express constitutional restric-
tion,— and none such is here claimed, — shall be borne by the
State at large, or be devolved upon the local municipalities,
is a mere question of public policy, upon which the determina-
tion of the General Assembly is conclusive.
A county is a public corporation, which exists only for
public purposes connected with the administration of the
State government, and it and its revenues are alike, where
no express constitutional restriction is found to the con-
trary, subject to legislative control. {County of Richland v.
County of Laivrence, 12 111. 1; County of Pike v. State, 11
id. 202; Dennis v. Maynard, 15 id. 477.) And accordingly
it was said, in People ex rel. City of Springfield v. Power,
County Judge, 25 111. 191 : "The revenues of a county are
not the property of the county, in the sense in which the
revenue of a private person or corporation is regarded. The
whole State has an interest in the revenue of a county, and,
for the public good, the legislature must have the power to
direct its application. The power conferred upon a county
to raise a revenue by taxation is a political power, and its
application, when collected; must necessarily be within the
control of the legislature for political purposes." And see,
also, to like effect, Sangamon County v. City of Springfield,
63 111. 66; Logan County v. City of Lincoln, 81 id. 156.
Analogous instances of the undoubtedly rightful imposition
of police burdens upon counties exist in the familiar cases of
the paying grand and petit jurors for their services in enforc-
ing the Criminal Code ; the paying of salaries to State's attor-
neys ; the paying of rewards for the capture, etc., of different
classes of criminals ; the paying of witness' fees in criminal
cases, in certain contingencies ; the providing and payment
for support of paupers; the building of jails, and the paying
350 Marion County v. Lear. [Jan.
Opinion of the Court.
for dieting, clothing, etc., of prisoners. Many other instances
might be added, but it is surely unnecessary. We do not
believe, that any clearer power of legislation for police pur-
poses exists under the constitution than that exercised in
the enactment under consideration. We think it is, in all
respects, consistent with the constitution, and therefore a
valid statute. It is true the incumbent of an office takes it
with its burdens, but he no less takes it with its benefits, and
the benefits of this enactment were a part of the inducement
held out to him to accept the office at the salary or com-
pensation fixed by the board of supervisors, and there is no
more reason why he should be deprived of this than of any
other guaranty of compensation under which he accepted the
office.
It was shown in proof, upon the trial, that appellee was
sheriff of Marion county for two years ; that his salary or
compensation was fixed at $1000 per annum, and he was,
by a separate order, allowed $800 per annum for deputy
hire, expenses, etc. He collected from fees earned as sheriff,
before making the present application, $2560.28, which is,
of course, in excess of his salary or personal compensation
as sheriff, and appellant insists, on this state of facts, even
conceding the statute to be constitutional, he is not entitled
to collect the fees in the criminal cases from the county.
We entirely concur in this view. The word "salary," as used
in the statute, clearly applies to the personal compensation
provided to be paid to the sheriff for his own services. We
have held that this personal compensation must be paid as
fixed by the board of supervisors, and when fixed separately
from the allowance made for deputy hire and other expenses,
he can receive no more on the latter account than he shall
actually pay out, not exceeding the sum fixed by the board.
Jennings v. Fayette County, 97 111. 419; Daggett v. Ford
County, 99 id. 334; Cullom v. Dolloff, 94 id. 330; Briscoe v.
Clark County, 95 id. 309.
1884.] Carter et al. v. Eodewald et al. 351
Syllabus.
We are aware of no instance in our law where the word
"salary" is used merely to express the idea of a payment for
expenses actually incurred, and since it is to the statute alone
to which appellee must look for authority to demand the pay-
ment of these fees by the county, he must show a deficiency
in the payment of his "salary," — i. e., personal compensa-
tion,— after applying to the payment thereof all the fees col-
lected by him from other sources, before he can require the
county to pay these fees in criminal cases, and then it can
only be required to do so to the extent of such deficiency.
For an elaborate and forcible presentation of the reasons
applicable to this view we refer to Crawford County v. Lind-
say, 11 Bradw. 261.
The judgment is reversed and the cause remanded.
Judgment reversed.
James H. Carter et al.
v.
Frederick Eodewald et al.
Filed at Mt. Vernon January 22, 1884.
1. Return of service — sufficiency. A return to a chancery summons
was as follows: "I have duly served the within by reading the same, and
delivering a true copy thereof to the within named C D, as I am therein
commanded. April 18, 1878": Held, as showing a valid service, and that
the return sufficiently showed that a copy of the writ was delivered, and that
the date referred to the time of service, and not to the date of the return.
2. Summons — description of court. A summons in chancery, the caption
of which was, "State of Illinois, Alexander county, ss.," commanded the de-
fendant to appear "before the circuit court of said Alexander," omitting the
word "county." The subsequent words were, "at the next term thereof, to
be holden in the city of Cairo, in said Alexander county, on," etc.: Held,
that the omission of the word "county" was a mere clerical omission, and of
no consequence.
352 Carter et at. v. Eodewald et al. [Jan.
Syllabus.
3. Error — party can not urge error as to one not objecting. On a bill
to enjoin the collection of taxes against a railroad company whose property
was in the hands of a receiver, a decree was made enjoining the collection of
the taxes, and also the receiver from paying the same: Held, that the col-
lector enjoined could not assign for error the decree against the receiver.
4. Eeceiver — conflict of jurisdiction. After the appointment of a re-
ceiver of an insolvent railway company by the United States Circuit Court,
at the suit of certain bondholders, and possession l^tken by such receiver,
the bondholders of the company secured by deed of trust on the real estate
of the company filed a bill in the circuit court of the State to enjoin the col-
lection of the personal property tax of the corporation by the sale of the
mortgaged property, and to enjoin the receiver from paying the same out of
assets in his hands: Held, that the fact that the property sought to be made
liable for the taxes was in the possession of the United States court, by the
receiver, could not affect the jurisdiction of the State court as to the subject
matter, and that permission to sue the receiver" in the State court might be
presumed from the fact of no objection being made.
5. Chancery — when party may sue in his own behalf and that of
others. The holder of a portion of bonds secured by deed of trust given by
a railway company, in order to protect the mortgaged property or fund secur-
ing his and others' bonds, may file a bill in his own behalf and in behalf of
all other holders of such bonds, his interest and that of the others being iden-
tical and inseparable.
6. Practice — default — presumption in favor of ruling below. On the
same day a rule was entered requiring the defendants to answer a bill by a
future day, it appeared by entry of record the defendants were defaulted, the
decree, however, finding that "the defendants having each failed to answer
complainants' bill, as by the rule of the court they were required to do, " etc. :
Held, that as every presumption is in favor of the regularity of the proceed-'
ings of a court, it would be taken that the decree asserted the fact, and the
inconsistency in dates be regarded as a clerical error.
7. Lien for taxes — personal property tax as a lien on real property.
A tax on personal, property, as, on the capital stock of a corporation, does
not become a lien on real estate until the collector shall select for that pur-
pose some particular tract or lots of real property, and charge the tax against
the same in his application for judgment.
8. Injunction— to prevent seizure of property not liable to tax. A
person who obtains a lien on property prior in time to that of a tax assessed
against the owner, is entitled to have enjoined the seizure of such property
for the tax.
Writ of Error to the Circuit Court of Alexander county ;
the Hon. David J. Baker, Judge, presiding.
1884.] Carter et al. v. Rodewald et al. 353
Brief for the Plaintiffs in Error.
Mr. A. G. Damron, Mr. L. M. Bradley, Mr. W. V. Choisser,
and Mr. P. A. Pearce, for the plaintiffs in error :
The return of service as to Burnett is defective. It should
have a service of the "within writ." A statement that he
"served the within," is not good. The return should show
what was served, and when it was served. The return is
dated, but not the date of the service. Carter is commanded
to appear "before the circuit court of said Alexander," — not
Alexander county. Hochlander v. Hochlander, 73 111. 618 ;
Dick v. Moore, 85 id. 66; Practice act, sec. 4.
The Federal court alone had cognizance of the matter.
High on Receivers, sec. 48. See, also, Richards v. People,
81 111. 551.
The court had no jurisdiction over any bondholder except
Rodewald, and yet the decree is in his favor and in favor of
all other bondholders.
When the decree was entered defendants were not in de-
fault, as the time they were required to answer had not
expired. This was error. Pratt-v. Grimes, 35 111. 164; Clark
v. Ewing, 87 id. 344.
The whole property was bound for the payment of the tax,
and the bondholders were as much interested in shielding
the rolling stock from taxation as the real estate. Taxes on
personal property may be properly charged upon real estate.
Revenue act, sees. 255, 183 ; Schcefer v. People, 60 111. 179.
A court of equity will not take jurisdiction to restrain the
collection of a tax for mere irregularity. Vieley v. Thompso7i,
44 111. 13.
The general doctrine as to when equity will interpose, is
stated in Da Page County v. Jenks, 65 111. 286; Lemont v.
Singer & Talcott Stone Co. 98 id. 102; Munson v. Miller, 66
id. 380 ; Union Trust Co. v. Weber, 96 id. 346.
The remedy, if any, was at law, and defence could have
been made in the county court. Revenue act, sec. 190;
23—108 III.
354 Carter et al. v. Rodewald et al. [Jan.
Brief for the Defendants in Error. Opinion of the Court.
Archer v. Terre Haute R. R. Co. 102 111. 493 ; Foss v. Chi-
cago, 56 id. 359 ; Pease v. Chicago, 21 id. 500.
Messrs. Greene, Burnett & Humphrey, for the defendants
in error :
The summons, with the return thereon as to Burnett, was
filed with the clerk October 22, 1877. The service and return
must have been made before that time. Rivard v. Gardner,
39 111. 127; Banks v. Banks, 31 id. 162; Reddick v. State
Bank, 27 id. 145 ; Timmerman v. Phelps, id. 496 ; Coursen v.
Hixon. 78 id. 339.
Before this tax became any lien the railroad company had
been divested of the property, and the tax warrants subse-
quently issued could not attach as liens upon the same as
against prior liens and rights of creditors. Ream v. Stone,
102 111. 359 ; Binkert v. Wabash Ry. Co. 98 id. 205 ; Gaar,
Scott & Co. v. Hurd, 92 id. 315.
The suit was properly brought by complainant for himself
and on behalf of all other bondholders, their interests being
identical and inseparable. Story's Eq. PL sees. 97-115.
As every presumption is in favor of the regularity of the
proceedings of a court, it will be taken that the decree finding
that the defendants failed to answer as required by the rule,
is true, and this court will treat the inconsistency in the dates
shown, as a clerical error, and disregard it.
The jurisdiction of a court of equity in a case of this class
is very manifest. "Rickey v. Forrestal, 49 111. 255 ; Ohling v.
Luitjens, 32 id. 33.
Mr. Chief Justice Sheldon delivered the opinion of the
Court :
This was a bill in chancery to restrain the collectors of
taxes of certain counties from taking any steps for the pur-
pose of charging the capital stock tax for the year 1873,
assessed against the Cairo and Vincennes Eailroad Company
1884.] Carter et al. v. Kodewald et al. 355
Opinion of the Court.
upon the road-bed, right of way, railroad track and real
estate of said railroad company, and to enjoin the receivers
of said company from paying such tax. The defendants fail-
ing to make answer to the bill, a decree pro confesso was
entered against them, in accordance with the prayer of the
bill. The collectors of taxes sued out this writ of error.
The first error assigned is as to supposed defects in the
service of process. The return of service upon the defendant
Burnett is :
"I have duly served the within by reading the same, and
delivering a true copy thereof to the within named George E.
Burnett, as I am therein commanded.
"April 18, 1878. James H. Pease, Coroner."
It is objected that the return does not show a copy of ivhat
was delivered, or the time of service, — that the date appearing
is that of the return, not of the service. The return being
indorsed on the summons, stating that the within was deliv-
ered, is a statement that the summons was delivered. The
date which appears refers with sufficient certainty to the time
of service, and is to be taken as that, and not the time of the
return. Chic, and St. Louis R. R. Co. v. Holbrook, 92 111. 299.
It is objected that the defendant Carter is, commanded to
appear "before the circuit court of said Alexander," — not
Alexander county. This is a mere clerical omission, of no
consequence. The caption of the writ is, "State of Illinois,
Alexander county, ss.," and the words which follow, com-
manding the defendant "to appear before the circuit court of
said Alexander, at the next term thereof, to be holden in the
city of Cairo, in said Alexander county, on," etc., inform the
defendant of what the omission was, and that it was the cir-
cuit court of Alexander county before which he was to appear.
In a suit in the United States Circuit Court for the Southern
District of Illinois, there had been appointed two persons
receivers of the railroad, and it is alleged to be error that the
356 Carter et al. v. Eodewald et al. [Jan.
Opinion of the Court.
State court took jurisdiction of the receivers, and decreed a
perpetual injunction against them, — that the United States
court alone had cognizance of the matter. The receivers are
not parties to the writ of error, and as they are not complain-
ing of the decree, the court is nofi called upon to review it as
against them. But if it were, we should find no error. The
object of the bill was to enjoin the collection of taxes assessed
by the authorities of the State, and the fact that the property
sought to be made liable for the taxes was in the possession
of the United States court, by the receivers, could not affect
the jurisdiction of the State court as to the subject matter.
The receivers might have objected to being sued in the State
court, but did not. The receivers might be sued in the State
court, with the permission of the court appointing them, and
no objection having been made, such permission may well be
presumed.
It is objected that the court had no jurisdiction over any
bondholder except the complainant Eodewald, and yet that the
decree is in his favor and in favor of all other bondholders —
that the other bondholders should have been made defendants,
as unknown bondholders. The only ground for this objection
is that the complainant Eodewald states, in his bill, that he
brings the suit on his own behalf, as a bondholder, and on
behalf of all other bondholders of mortgage bonds of the
railroad company, which the property in question had been
mortgaged to secure. The decree is not in terms in favor of
all the bondholders. The relief prayed and granted was such
as would have been granted, if at all, in behalf of complain-
ant suing alone. His interest extending to the entire property
threatened, entitled him to the protection of the court in that
regard, and to all the relief granted, independent of the other
bondholders; and the interest of all the bondholders was so
identical and inseparable, that he was entitled to sue in behalf
of all, as well as in his own behalf. It is a common form of
suit in such cases.
1SS4.] Carter et at. v. Kodewald et al. 357
Opinion of the Court.
Another assignment of error is, that on May 20, 1S78, a
rule was entered upon the defendants to answer the bill by the
following Wednesday morning, and that on the same day the
rule was entered the defendants were defaulted. It is true that
the transcript of the proceedings does so show, but the decree
itself finds that "the defendants having each failed to answer
complainants' bill, as by the rule of the court they were required
to do, and each of said defendants being three times solemnly
called, came not, but made default." As every presumption
is in favor of the regularity of the proceedings of the court,
we may take the fact to be as asserted by the decree, that
the defendants had failed to answer, as required by the rule,
and regard the inconsistency in the dates as a clerical error.
As respects the merits of the ca#se, the mortgage or deed of
trust of the railroad property, to secure the payment of the
bonds of the company, was made in 1871. All the bonds
had been sold on the market prior to January 1, 1873. The
capital stock tax in question was assessed in the year 1873.
This capital stock tax is a personal property tax, and although,
by section 255 of the Eevenue act, real property is made liable
for taxes on personal property, it is provided that the tax on
personal property shall not be charged against real property,
except in case of removals, or where the tax can not be made
out of the personal property. Section 183 of the act pro-
vides how the tax on personal property shall be charged
against real property ; that the collector of taxes shall select
for that purpose some particular tract or lots of real property
owned by the person from whom the personal property tax is
due, and in his advertisement for judgment against and sale
of lands delinquent for taxes, shall designate the particular
tract or lots of real property against which such personal
property tax is charged, and in the list filed for such judg-
ment the same shall be shown, and that the court shall give
judgment against such tract or lots of real property for such
personal property tax.
358 Carter et al. v. Kodewald et al. [Jan.
Opinion of the Court.
A tax on personal property does not become a lien on real
estate until the collector of taxes shall select for that pur-
pose some particular tract or lots of real property, and charge
the tax against the same, as above named. Belleville Nail
Co. v. The People, 98 111. 399; Ream et al v. Stone et al. 102
id. 359 ; Parsons v. East St. Louis Gas Liglit Co., -post, p. 380.
And see Binkert v. Wabash Ry. Co. 98 id. 206 ; Cuoper v.
Corbin, 105 id. 225. The corporation against whom the per-
sonal property tax was assessed had parted with all interest
in this real estate in which the bondholders were interested.
The decree finds that the equity of redemption was of no
value whatever, and that the property was no longer in the
possession of the corporation, but was in the hands of the
court by its receivers. There was nothing against which this
tax could be charged, except property belonging exclusively
to the bondholders, or held for their benefit. Their interest
having been acquired long before the tax was assessed, the
bondholders, we think, were entitled to the relief granted, to
prevent making the threatened charge against the property
of this personal property tax, and thereby clouding the title
and impairing the security.
As to the suggestion that the remedy was at law, and not in
chancery, this court has frequently held that one who obtains
a lien on personal property prior in time to a tax assessed
against the former owner, is entitled to have enjoined the
seizure of such property for the tax. Ream v. Stone, 102 111.
359 ; Binkert v. Wabash Ry. Co. 98 id. 205 ; Cooper v. Cor-
bin, 105 id. 225.
As to the decreeing of costs against the defendants, that
being a matter resting in the discretion of the circuit court,
under the statute, we do not see proper to interfere with the
exercise of such discretion.
The decree will be affirmed.
Decree affirmed.
1884.] Thompson v. Meisser. 359
Syllabus.
Amos Thompson
v.
Sophia Meisser.
Filed at Mt. Vernon January 22, 1884.
1. Stockholder's liability for debts of the corporation — in what
manner discharged. Under a statutory provision making the stockholders
of a private corporation individually responsible for an amount equal to the
amount of stock held by them, respectively, in case of the failure of the cor-
poration to make pajnnent of any debt, etc., the stockholders are in effect
made partners, and are consequently jointly and severally liable to the cred-
itors of the corporation who are not also stockholders themselves, to the
amount of stock held by them, respectively.
2. As a corollary it follows that one stockholder can not maintain an action
at law on such individual liability against a fellow- stockholder, any more than
one partner can sue his co-partner at law on a claim against the firm which
he may have purchased.
3. In an action by an outside creditor of a corporation to enforce the
individual liability of a stockholder, the latter can not set off a debt due from
the corporation to himself.
4. A stockholder who is individually liable to the amount of his stock in
favor of creditors of his corporation, may discharge such liability by the pay-
ment, in good faith, of the amount of the same to any creditor who is not
also a stockholder. But he can not discharge himself by buying up debts
owing by the corporation equal in amount to his liability, at a discount. In
such case, if he retains such indebtedness so purchased by him, he can only
claim a discharge for the actual sum paid by him for the same.
5. After the insolvency of a bank, a stockholder who was personally liable
for the indebtedness of the corporation to the amount of $1000, (the amount
of stock held by him,) purchased certificates of deposit issued by the bank to
the amount of $3200 on their face, for fifteen cents on the dollar, of which
he sold all but $1000. On this latter sum another stockholder confessed
judgment, and the first named party entered satisfaction of such judgment
without any actual payment, and for the purpose of enabling the other to
avoid his liability to creditors. On suit by an outside creditor of the bank
against the first named stockholder, he pleaded payment of $1000 to another
creditor in discharge, and on the trial produced the certificates of deposit
upon which he had taken a confession of judgment: Held, that this showed
no discharge of any part of his liability.
360 Thompson v. Meisser. [Jan.
Brief for the Appellant.
Appeal from the Appellate Court for the Fourth District ;
— heard in that court on appeal from the Circuit Court of
St. Clair county ; the Hon. William H. Snyder, Judge, pre-
siding.
Mr. Charles W. Thomas, for the appellant :
The Appellate Court holds that a stockholder of a corpora-
tion is not entitled to the same protection as other creditors
as to indebtedness due him from the corporation, and cites
the following cases as sustaining that position: Bailey v.
Bancker, 3 Hill, 18S ; Weber v. Frickey, 47 Md. 200 ; Beers
v. Waterbury, 8 Bosw. 399 ; Thayer v. Union Tool Co. 4 Gray,
75; Richardson v. Abendroth, 43 Barb. 165.
The third of these cases follows the first, and contains no
argument or reason to support this holding. Richardson v.
Abendroth follows the first case cited, without any additional
reasoning, and one of the four judges put his judgment upon
a different ground, and one dissented. Weber v. Frickey will
be found to be rather against than in support of the position.
This leaves only the cases of Bailey v. Bancker, and Thayer
v. Union Tool Co., as authority to sustain the views of the
Appellate Court, and neither of them, when carefully exam-
ined, sustains that position. In both cases the statute made
the stockholders jointly, ,as well as severally, liable at law,
while the statute in this case makes the stockholders sever-
ally liable, by the use of the word " individually. " See
Thompson on Liability of Stockholders, sec. 36 ; McCarthy
v. Lavasche, 89 111. 287; Asjrinwall v. Lucchi, 57 N. Y. 331.
Where a stockholder takes up, cancels and destroys an
amount of deposits due from the bank equal to the amount
of his individual liability, he has complied with his obliga-
tion under the statute, and is discharged. Jones v. Wilt-
berger, 42 Ga. 575 ; Boyd v. Hall, 56 id. 563 ; Briggs v.
Penniman, 8 Cow. 386.
1884.] Thompson v. Meisser. 361
Brief for the Appellee. Opinion of the Court.
In New York, the case of Bailey v. Bancker is in effect
overruled by Mathes v. Neidlg, 72 N. Y. 200, as well as all
other cases based on that case.
Mr. W. C. Kueffner, for the appellee :
This court, in discussing the position of stockholders under
similar statutes, has treated them as co-partners in respect
to their liability. (Fuller v. Ledden, 87 111. 312; McCarthy
v. Lavasche, 89 id. 270; Wincock v. Turpin, 96 id. 143.)
Similar views have been expressed in other States, and in
holding that one stockholder can not sue another at law.
Beers v. Waterbury, 8 Bosw. 397; Bailey v. Bancker, 2 Hill,
190 ; Richardson v. Abendroth, 43 Barb. 165 ; Thayer v. Union
Tool Co. 4 Gray, 80; Weber v. Frickey, 47 Md. 200; Meisser
v. Thompson, 9 Bradw. 309.
This court has decided in a suit under this very charter
that a stockholder can not, in a suit against him to enforce
his individual liability, plead as a set-off an indebtedness of
the corporation to himself. Buchanan v. Meisser, 105 111. 639.
The charter declares that the stockholders shall be "re-
sponsible for an amount equal to the stock held by them,
respectively." By the construction contended for by appel-
lant, he might escape by the payment of a mere nominal
sum, if by operating on the fears or necessities of creditors
he could induce them to give an amount of claims equal to
the stock. If the stockholder can be allowed at all for claims
bought by him, they should be cancelled, and he should only
be allowed for the sum actually paid to take them up.
Mr. Justice Mulkey delivered the opinion of the Court :
This action was brought by Sophia Meisser, the appellee, in
the circuit court of St. Clair county, against Amos Thompson,
the appellant, as a stockholder in tne People's Bank of Belle-
ville, to recover the amount of a deposit made by her in said
362 Thompson v. Meisser. [Jan.
Opinion of the Court.
bank on the 20th of June, 1877, for the sum of $955. The
cause was tried in the City Court of East St. Louis, to which
it had been removed by change of venue, resulting in a judg-
ment in her favor for $955 debt, and $45 damages and costs,
which, on appeal to the Appellate Court for the Fourth Dis-
trict, was affirmed, and Thompson has appealed to this court.
The provision in the bank's charter upon which the indi-
vidual liability of the stockholders is founded, and upon
which this suit was brought, is as follows : " Whenever
default shall be made in the payment of any debt or liability
contracted by said corporation, the stockholders shall be held
individually responsible for an amount equal to the amount
of the stock held by them, respectively." This provision of
the charter, if not in the precise terms, is in substance and
effect to be found in the charters of numerous banking and
business corporations in this and other States of the Union,
and has frequently, here and elsewhere, been the subject of
judicial discussion, and without stopping to review the cases,
it may be confidently asserted the following propositions are
established by a decided weight of authority :
First — The stockholders, with respect to their personal lia-
bility under a provision of this kind, are, in effect, partners,
and are consequently jointly and severally liable to the cred-
itors of the corporation, exclusive of the stockholders them-
selves, to the amount of stock held by them, respectively.
Second — As a corollary of this proposition, one stockholder
can not maintain an action at law on such personal liability
against a fellow-stockholder, any more than one partner can
sue his co-partner at law on a claim against the partnership
which he has purchased from a creditor of the firm, for it
is an elementary principle the law will not permit one to
recover, in an action at law, on a demand which he himself
is equally bound with the defendant to pay.
Third — It further results from the proposition first stated,
that in an action by an outside creditor of the corporation to
1884.] Thompson v. Meisser. 363
Opinion of the Court.
enforce this personal liability against a stockholder, the latter
can not set off a debt due from the corporation to himself.
Buchanan v. Meisser, 105 111. 638 ; Wincoek v. Tiirp'ui, 96 id.
143 ; McCarthy v. Lavasche, 89 id. 270 ; Fuller v. Ledclen, 87
idt 310 ; Thayer v. Union Tool Co. 4 Gray, 80 ; Sawyer v.
Hoag, 17 Wall. 610; Weber v. Frickey, 47 Md. 200; Beers
v. Waterbury, 8 Bosw. (N. Y.) 397 ; Meisser v. Tliompson, 9
Bradw. 368.
That the defendant was originally liable to plaintiff for the
amount of her claim is confessed by the pleadings, but it is
claimed that by reason of the facts hereinafter stated such
liability has since been discharged.
Something less than a year after the making of this deposit
the bank became insolvent, and made a voluntary assignment
of all its effects to one Joseph Penn, for the benefit of cred-
itors, the deed of assignment bearing date April 22, 1878.
At the time of the deposit, as well as of the assignment for
the benefit of creditors, the defendant was a stockholder in the
bank, being the owner of ten shares of the bank stock, of the
par value of $100 each, and of the aggregate value of $1000.
A short time after the failure of the bank the defendant pur-
chased of one Isaac Phillips, an outside creditor, bank-deposit
certificates amounting in the aggregate, at their face value, to
$3200, for which he paid fifteen cents on the dollar. Thomp-
son retained $1000 in these certificates, and sold to other
parties the residue. Kraft, Heinzleman and Maus were also
stockholders in the bank, and were severally owners of stock
therein to the amount of $1000, and they also severally held
bank-deposit certificates, purchased from outside creditors of
the bank, amounting to $1000 dollars. Such being the con-
dition of affairs, the parties, with a view of relieving them-
selves from this personal liability under the charter, mutually
agreed between themselves that Thompson should confess a
judgment in favor of Heinzleman for the amount of deposit
certificates held by the latter; that Heinzleman should con-
364 Thompson v. Meisser. [Jan.
Opinion of the Court.
fess a like judgment in favor of Maus for the $1000 in cer-
tificates held by him ; that Maus should confess a similar
judgment in favor of l£raft for the amount of his certificates,
and to complete the circle, that Kraft should confess a judg-
ment in favor of Thompson for the $1000 in certificates held
by him, and judgments were accordingly confessed in the
St. Clair circuit court, in conformity with this arrangement.
It further appears, on the same day these judgments were
rendered, Kraft, in pursuance of an understanding to that
effect, procured $1000 from a convenient bank, and paid the
same to Thompson, in satisfaction of the latter's judgment,
Thompson passed the money over to Heinzleman, Heinzle-
man on to Maus, and Maus back to Kraft, and the latter
back to the bank. All this was done with the view of show-
ing an actual payment and satisfaction of these several judg-
ments, and satisfaction was accordingly entered upon the
record in each case, and such is the condition of these judg-
ments, we presume, at the present time.
On the trial, which was had before the court without a
jury, the defendant offered in evidence the certificates of
deposit which were the foundation of >his suit against Kraft,
and whereon the latter confessed a judgment in Thompson's
favor, as above stated, the same having been taken from
the files in that case. They were offered, as is claimed by
counsel, for the purpose of proviug, under appellant's ninth
amended plea, that he had paid to a creditor of the bank,
other than a stockholder, an amount equal to his individual
liability under the charter. This evidence was heard against
the objections of the plaintiff. Nevertheless, the court, upon
the whole case, refused to hold as law the following proposi-
tion, namely : "If Thompson, before this suit was brought,
purchased of a creditor of the bank who was not a stock-
holder therein, for the purpose of cancelling and paying his
(Thompson's) double liability as a stockholder of the bank,
a certificate of deposit of the bank for an amount equal to
1884.] Thompson v. Meisser. 365
Opinion of the Court.
the amount of his stock, and has produced the same on trial
hereof for cancellation, the plaintiff can not recover, " — and
the appellant insists this was error. We do not think so.
The facts relied on for the purpose of showing such a pay-
ment, in our judgment prove just the contrary, and hence
there was no evidence on which to base the proposition. We
have no doubt the law permits a stockholder to relieve him-
self of this individual liability by in good faith paying the
amount of such liability to any outside creditor of the cor-
poration who has a right to demand of him such pajanent.
But no such a case as that is presented by this record. It
is true an attempt has been made by appellant to show such
a payment by bringing into court and offering in evidence
deposit certificates bought by him of Phillips at fifteen cents
on the dollar, to the amount of $4000. But it further appears
these very certificates were brought from the files of court in
the old suit between appellant and Kraft, wherein the latter
confessed a judgment in appellant's favor on these same cer-
tificates, and this judgment, as we have already seen, was on
the day of its rendition entered satisfied by appellant. The
parties may have been, and probably were, mistaken as to
the legal effect of the transaction, but they fully understood
what they were doing, and must therefore abide the conse-
quences of their acts. It is not claimed there was any mis-
take of fact, but even if there had been, it could not be
corrected in this proceeding. The parties were, doubtless,
seeking to obtain an advantage over the outside creditors of
the bank, who had a right to rely on their personal liability
as stockholders, and if, by a misapprehension of the legal
effect of the measures adopted for that purpose, a loss has
been sustained, they have no one to blame for it but them-
selves.
It is clear when appellant recovered a judgment against
Kraft for the amount of these certificates, the indebtedness
represented by them became merged in the judgment, and
366 Thompson v. Meisser. [Jan.
Opinion of the Court.
the certificates themselves became functus officio. The debt
having thus become one of record, when the appellant volun-
tarily discharged it by the entry of satisfaction, that was an
end of it. For reasons already stated, it is clear if Kraft
had defended, Thompson could not have recovered, for so
long as the certificates were to be regarded as existing obli-
gations against the stockholders, under the individual lia-
bility clause in the charter Thompson was as much bound
to pay them as Kraft. But the failure of the latter to make
this defence did not at all change the legal effect of the judg-
ment or its subsequent satisfaction, and Kraft and Thompson
both are now estopped from attributing to either any other
legal effect than that which the law ascribes to it. It is true
appellant claims that in buying these certificates it was with
a view of discharging his double liability as a stockholder,
though he admits, at the same time, he sold most of them to
others, and that he sued and recovered a judgment against
a fellow- stockholder on the others. Yet, whatever may have
been intended, it is clear the appellant can not, by mere ver-
bal statements as a witness, qualify, or in any manner limit,
the effect of the legal proceedings with respect to said cer-
tificates.
But outside of all this, we do not think stockholders can
discharge themselves from this statutory liability except by
paying the full amount of it, where the whole of it is required
to meet the demands of outside creditors. This liability con-
stitutes a fund to satisfy their claims, and so long as any of
such claims exist, those of the stockholders who have not
actually paid the full amount of their liability are bound to
respond. It is clear one partner is not permitted to make a
profit not shared in by the other partners, by buying up the
firm's debts at a discount. So, as all the stockholders are in
effect partners with respect to the fund arising from their
individual liability under the charter, on the same principle,
one stockholder can not obtain an advantage over his fellow-
1884.] Thompson v. Meisser. 367
Opinion of the Court.
stockholders by buying in the claims of outside creditors of
the corporation at a discount. Of course, the outside creditor
thus selling would be bound by his bargain, but the rights
of the other outside creditors, not parties to the transaction,
could not be affected by it, except so far as the common fund
arising from this individual liability of the stockholders was
diminished by actual payment. This common fund is open
to all the outside creditors alike, and each one has the simple
right to use it in payment of his own claim so long as any
of it remains for that purpose, and it therefore follows he
can not, by any contract or agreement with a particular
stockholder, affect this common right of other creditors. If
he does not see proper to appropriate enough of the common
fund to pay his entire claim, that is his own lookout. Until
he does so, the claims of the others attach to what remains.
Had appellant held the deposit certificates purchased by him,
or any part of them, as evidence of his having discharged,
in whole or in part, this personal liability, it would have been
a good defence to this suit, to the extent of the money actu-
ally and in good faith paid out by him for that purpose ;
but instead of that, he sues another stockholder for the full
amount of the certificates, and gets a judgment therefor,
which the record shows was satisfied by actual payment, and
this must be accepted as an end of the matter, so far as the
parties to this suit are concerned. This is the only construc-
tion of the provision of the statute in question which will
place the fund thereby intended to be provided for the outside
creditors exclusively, completely beyond control of the stock-
holders. The latter, knowing their individual liability can
only be discharged by actual payment so long as there are
any outside creditors whose claims are unsatisfied, will have
the strongest possible inducement to see that the affairs of
the corporation are managed with prudence and economy.
On the other hand, if it be once understood that upon the
insolvency of the corporation the stockholders may go upon
368 W., St. L. & P. By. Co. v. McCleave. [Jan.
Syllabus.
the market, among its panic-stricken creditors, and purchase
their claims against the company at a mere nominal price,
and thereby relieve themselves of their individual liability,
what advantage would the statute be to the outside creditors ?
And what special interest would the stockholders have to see
the affairs of the corporation economically and honestly con-
ducted? The present case affords a sufficient answer to
these questions.
We are aware that authorities are to be found not in accord
with what is here said, but the general principles affecting
the question, as shown by the cases already cited, necessarily
lead to this result. Besides, we must reserve the right to
construe our own statute, and in doing so we have adopted
that construction which, in our judgment, will best effectuate
the legislative intent, and such as is demanded by a wise
public policy.
The conclusion reached by the lower courts being in accord
with our own, the judgment of the Appellate Court is there-
fore affirmed.
Judgment affirmed.
Wabash, St. Louis and Pacific Eailway Company
v.
John W. McCleave.
Filed at Mt. Vernon January 22, 1884.
1. Taxation — town taxes are in no sense county taxes. Town taxes
levied for township purposes are not county taxes, within the meaning of
section 8, article 9, of the constitution, prohibiting county authorities from
assessing taxes the aggregate of which shall exceed seventy-five cents on the
one hundred dollars of valuation, except for the payment of indebtedness
existing at the adoption of that instrument, etc. Such towns are nranicipal
corporations, and taxes levied by them are for corporate purposes.
2. Same— town taxes not levied by county board. Where the proper
authorities of towns, townships, districts, and incorporated cities and vil-
188*.] W., St. L. & P. Ky. Co. v. McCleave. 369
«
Opinion of the Court.
lages, certify, in proper time, to the county clerk the several amounts required
by them to be raised by taxation, it is made the duty of the county clerk to
ascertain the rate per cent, and extend the same upon the tax books. No
action of the county board is necessary to authorize such levy, and any order
of such board neither adds to nor takes from the duty of the clerk to extend
such taxes.
3. Same — of municipal corporations. Organized townships under the
Township Organization law have power, under the constitution and the law,
to levy and collect taxes for various corporate purposes. The legislature is,
by section 9, article 9, of the constitution, authorized to confer upon any and
all municipal corporations authority to levy and collect taxes for all corporate
purposes; and even if this section of the constitution had not been adopted,
the legislature would have ample power to authorize the levy and collection
of such taxes. These constitutional provisions are only limitations on the
legislative power.
Appeal from the Circuit Court of Lawrence county; the
Hon. William C. Jones, Judge, presiding.
Mr. Samuel B. Wheeler, for the appellant.
Mr. K: P. Snyder, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
Appellant filed a bill in the Lawrence circuit court, against
appellee, as county treasurer, to enjoin taxes that had been
levied and extended against the property of the company.
It is alleged -in the bill that the board of supervisors exceeded
their power in levying more than the law authorized for county
purposes. Appellee answered, denying that body exceeded
its power, and insisted that the supervisors levied no more
than is warranted by the constitution and law. A hearing-
was had, and the circuit court dissolved the temporary in-
junction and dismissed the bill. On suggestions of damages
being filed, and on hearing the proofs, the court decreed that
appellant pay to appellee $60, as a reasonable attorney's
fee, and complainant brings the record to this court and
assigns errors.
24-108 III.
370 W., St. L. & P. By. Co. v. McCleave. [Jan.
Opinion of the Court.
It appears that the board of supervisors levied sixty-four
cents on the one hundred dollars of valuation of the property
for county purposes, and levied a town tax on the property
of each of these towns through which appellant's road was
located, for town purposes : For the town of Dennison,
$300, — which was ten and one-half cents on each one hun-
dred dollars of valuation ; for the town of Lawrence, $250, —
which was seven and six one-hundredths cents on the one
hundred dollars of the assessed value of property in the
town ; for the town of Bond, fourteen cents on each one hun-
dred dollars of valuation of property in that town ; a road
and bridge tax for the town of Dennison of $800, — being
twenty- eight cents on the one hundred dollars of valuation
of the property in that town ; for the town of Lawrence,
thirty cents on each one hundred dollars of valuation ; for
the town of Bond, $450, — being twenty-five cents on each
one hundred dollars of valuation ; and forty cents on the
same valuation in the town of Bond, for special bridge pur-
poses, for the year 1882. It is not disputed that there is
statutory authority for the levy of these taxes, but it is urged,
with apparent earnestness, that these taxes are county taxes,
and are prohibited by the constitution because they exceed
the amount authorized to be levied. The portion of the con-
stitution referred to as prohibiting the levy is section 8, article
9, and reads: "County authorities shall never assess taxes
the aggregate of which shall exceed seventy-five cents on the
one hundred dollars valuation, except fox the payment of
indebtedness existing at the adoption of this constitution,
unless authorized by a vote of the people of the county."
There is no claim that the county was indebted, nor does the
levy reach, as specified by the order, that amount by eleven
cents on the one hundred dollars. We are unable to appre-
ciate the argument that the town taxes are for county pur-
poses. The towns are municipal corporations, under the
1884.] W., St. L. & P. By. Co. v. McCleave. 371
Opinion of the Court.
Township Organization law, and these taxes were levied for
corporate purposes.
But appellant urges that the law does not authorize the
levy of taxes for organized townships — that the law author-
izing the levy and collection of taxes for towns refers to incor-
porated villages. To show that there is not the slightest
ground for this objection, we have but to turn to almost any
section of the Township Organization law to see that such
townships are called "towns." This point is destitute of the
slightest force. The last clause of section 9, article 9, of the
constitution, recognizes the power of the legislature to author-
ize these bodies to levy and collect taxes for municipal pur-
poses. This is the entire section :
"The General Assembly may vest the corporate authorities
of cities, towns and villages with power to make local im-
provements by special assessment, or by special taxation of
contiguous property, or otherwise. For all other corporate
purposes- all municipal corporations may be vested with
authority to assess and collect taxes, but such taxes shall be
uniform in respect to persons and property within the juris-
diction of the body imposing the same."
This is conclusive of the question. Even if this section
had not been adopted, the legislature would have had ample
power to authorize their levy and collection. Section 8 of that
article is only a limitation on the legislative power to authorize
the levy of county taxes, and we have seen the taxes com-
plained of are in no sense county taxes. As well claim the
State taxes are for county purposes. The one is no more dis-
similar to a county tax than the other. When collected they
are paid to town officers and expended for town purposes.
The county does not receive or spend them.
The 122d section of the Be venue law provides that the
proper authorities of towns, townships, districts, and incor-
porated cities and villages, shall, annually, on or before the
372 W., St. L. & P. Ky. Co. v. McCleave. [Jan.
Opinion of the Court.
second Tuesday in August, certify to the county clerk the
several amounts which they severally require to be raised by
taxation. And the 127th section requires the county clerk to
estimate and determine the rate per cent on the valuation of
property in the several towns, townships, districts, and incor-
porated cities and villages, that will produce therein the sev-
eral amounts required by the county board, or certified to
them according to law, and the 128th section requires the
county clerk to extend them on the collector's books. Thus
it is seen that it was not necessary that the board of super-
visors should have made any levy of these municipal taxes.
These sections impose the duty on the county clerk without
any action on the part of the board. The order of the board
in reference to these local taxes added nothing to nor did it
detract anything from their validity. So, if anything more
was needed to show these were not county taxes, this is con-
clusive of that question, as they are not levied by the board.
They are levied by the town authorities, by filing their cer-
tificate of the amount required with the county clerk. That
is the levy and authority for the clerk to extend them. The
fact that the county board made an order in form levying
these local taxes, had no legal effect whatever. It, no doubt,
showed of record the amount of taxes levied by the authori-
ties of the towns, etc., but nothing more.
We perceive no error in this record, and the decree of the
circuit court is affirmed.
Decree affirmed.
1884.] McKean et al. v. Vice. 373
Syllabus.
Lydia A. McKean et al.
v.
S. S. Vice.
Filed at ML Vernon January 22, 1884.
1. Administrator's sale— limitation— laches. It is the settled doc-
trine of this court that a delay, when not satisfactorily explained, for seven
years after the grant of letters of administration, in presenting a petition by
the administrator for an order to sell real estate to pay debts, is such ladies
as will bar any relief under it.
2. The fact that one of the lots sought to be sold had been assigned to the
widow as a part of her dower, and had been and was continuously occupied
by her as a homestead, and is still so occupied, is no satisfactory excuse for
a delay of nearly thirteen years in making such application.
3. Same — where there is already a decree for the sale. A petition of
an administrator for leave to sell real estate to pay debts, filed nearly thirteen
years after grant of letters, alleged as an excuse for the delay that the real
estate belonged to the decedent and two others, as partners, and that about
three years after the grant of letters a decree was rendered in favor of the
two surviving partners, against the widow and heirs of the deceased, finding
that the firm was indebted beyond its personal propeily, choses in action,
etc., and directing such partners to sell and convey such real estate, and
apply the proceeds first to the payment of the balance due on the partnership
debts, and the remainder, if any, to the administrator of the estate, and that
three attempts were made to sell the property, all of which proved abortive.
It was held, it not appearing that the partnership debts had yet been paid,
there was no occasion for another decree to sell the land, since all the admin-
istrator could reach would be the amount remaining after satisfying the part-
nership indebtedness.
4. Decree— finding of facts contrary to evidence preserved. Where
the evidence in a petition by an administrator for leave to sell real estate to
pay debts, is preserved in the record by a bill of exceptions or certificate,
and it does not sustain a recital in the decree of the facts found, the recital
goes for naught.
5. Partnership — duty of surviving partner in settling up. It is the
duty of surviving partners to settle up the business of the partnership with-
out delay, and it is also the duty of the administrator of the estate of the
deceased partner to see that they do so.
6. If a surviving partner fails to use proper diligence to settle and close
the partnership matters, and does not settle within a reasonable time, he may
be coerced thereto by the county court, or on application to a court of chan-
cery he may be removed from his trust and a receiver appointed.
374 McKean et al. v. Vick. [Jan.
Briefs of Counsel.
Writ of Error to the County Court of Williamson county ;
the Hon. James M. Washburn, Judge, presiding.
Messrs. Hartwell Bros., and Mr. A. D. Duff, for the
plaintiffs in error :
On application by an administrator to sell land, the heirs
may contest the claims allowed, and show they are no charge
on their real estate. Stoiie et al. v. Wood, 16*111. 177; Still-
man v. Young, id. 318; Hopkins v. McCowan, 19 id. 113;
Heirs of Lang worthy v. Baker, 23 id. 4S4.
Eeal estate can be sold only to pay debts existing at the
death of the intestate. Donnan v. Yost, 13 111. 127; Fitz-
gerald v. Glancy, 49 id. 465; Farrar v. Dean, 24 Mo. 16.
If the creditors do not enforce their lien against the real
estate within seven years, it is lost. McCoy v. Morrow, 18
111. 519; Heirs of Langworthy v. Baker, 23 id. 484; Wolf v.
Ogden, QQ 111. 224; Furlong v. Riley, 103 id. 628.
The ground assigned for the delay in making the appli-
cation furnishes no excuse at all. It was the duty of the
administrator to have had the partnership matters adjusted,
and the attempted excuse in this respect is but another way of
stating his own gross negligence in the discharge of his duty.
An administrator of a deceased partner, under sections 86
to 89, inclusive, of chapter 3, of the Eevised Statutes, had
the power to go into the county court and compel the surviv-
ing partners to do their duty, or they might have been com-
pelled to settle up by bill in chancery. Miller v. Jones, 39
111. 60 ; Nelson v. Hayner et al. 6Q id. 487.
Messrs. Clemens & Burton, for the defendant in error :
There are circumstances that not only authorize, but make
it the duty of, an administrator to redeem lands from tax
sale. McCreedy v. Mier, 64 111. 499.
Claims against an estate may be exhibited within two years
from the grant of letters, and not be allowed until long after-
1884.] McKean et at. v. Vice. 375
Opinion of the Court.
wards. Wells v. Miller, 45 111. 33 ; Mason v. Tiffany, id. 392 ;
Barbour v. Thurman, 49 id. 283.
The allowance of claims is prima facie correct as to the
heirs, and conclusive on the administrator. Gold v. Bailey,
44 111. 491; Stone v. Wood, 16 id. 177; Motsingerv. Coleman,
id. 171; Hopkins v. McCowan, 19 id. 113; Mason v. Blair,
33 id. 194.
As to the defence that this application by the administrator
is, by analogy to the Statute of Limitations, barred by the
lapse of time, we insist (considering the circumstances of the
unsettled partnership matters as to the principal portion of
this land, and the widow's dower, etc., over the rest, the con-
tinued ownership by the heirs, there having been no transfers
nor any improvements, etc.,) the rule, with its qualifications,
announced in the cases of Rosenthal v. Renick, 44 111. 202,
Moore et al. v. Ellsiuorth etal. 51 id. 310, and Bitrsen v. Good-
speed, 60 id. 277, furnishes no sufficient justification for the
objection to this application by the administrator for the
order.
Mr. Justice Scholfield delivered the opinion of the Court :
This was a petition in the county court of Williamson
county, by the administrator, against the widow and heirs
at law of Evan T. Wiley, deceased, to sell real estate to pay
debts.
Among other defences interposed by the answer was that
of laches — that the petition was not filed until after the expi-
ration of more than seven years from the grant of letters of
administration. The county court disallowed the defence,
and decreed a sale of the real estate in conformity with the
prayer of the petition.
Although numerous errors are assigned upon the record, in
the view we have taken of the case it will only be necessary
to inquire whether the defence of laches was properly disal-
lowed.
376 McKean et al. v. Vice. [Jan.
Opinion of the Court.
The letters of administration were granted on the 16th of
May, 1870, and the petition was not filed in the county court
until the 26th of January, 1883, — -a period of almost thirteen
years. It may be regarded the settled doctrine of this court,
that where it is not satisfactorily explained, delay for seven
years after the grant of letters of administration in present-
ing a petition of this character, is such laches as will bar any
relief under it. (Rosenthal, Admr. v. Renick et al. 44 111.
202; Moore et al. v. Ellsworth et al. 51 id. 308; Bishop et al.
v. O'Conner et al. 69 id. 431 ; Furlong, Aclmx. v. Riley et al.
103 id. 628.) The explanation of the delay here relied upon
is, that, as to one town lot, it had been assigned to the widow
as and for a part of her dower in the estate of the decedent,
and had been and was continuously occupied by her as a
homestead, and that the residue of the real estate belonged
to the decedent, and Charles M. Edwards and Andrew J.
Mann, as partners ; that at the March term, 1873, of the
Williamson county circuit court, a decree was rendered in
behalf of said Edwards and Mann, as surviving partners,
against the widow and heirs of the decedent, finding that the
firm was indebted beyond its personal property, choses in
action, etc., and empowering and directing the said Edwards
and Mann, as such survivors, to sell and convey said real
estate, and apply the proceeds to be received therefrom, first
to the payment of the balance due on the partnership debts,
and second, the remainder, if any, pay over to the adminis-
trator of the intestate ; and that three attempts, each of
which was unavailing, were made to sell under that decree.
This explanation is not satisfactory. The condition of the
town lot is precisely now what it has been all the time. If
the fact of its being incumbered by the widow's dower and
homestead was ever a reason why it should not be sold, that
reason still exists. The interest of the heirs in the remainder
has neither yielded them anything nor been augmented or
rendered more available by transpiring circumstances, but
1884.] McKean et al. v. Vice. 377
Opinion of the Court.
the debt, by the addition of accumulating interest, has been
growing until it is almost doubled. The policy that has been
pursued is the most destructive of the rights of the heirs that
could have been pursued by the administrator and creditors.
As to tha partnership property, it is to be observed there
is not a particle of proof in the bill of exceptions or certifi-
cate of evidence transcribed in this record that the partner-
ship debts have yet been paid. The decree, it is true, finds
to that effect, but we are confined to the evidence in the bill
of exceptions or certificate when the evidence is so preserved
as it is here, and when this does not sustain the recital in
the decree, the recital goes for naught. {Brooks et al. v. Mar-
tin et al. 64 111. 389.) No reason therefore appears why it
may not yet be necessary to sell under this decree, and no
necessity can exist for also selling under another decree, since,
by the very terms of this decree, all that the administrator
can reach is to be paid over to him by the surviving partners
after sale, and payment of the partnership debts.
Apart from this, however, no reason is shown why the
partnership was not settled up many years since. No pro-
tracted litigation is shown, and no impediment of any char-
acter to a speedy and full settlement of the partnership
matters was proved. Three different offers to sell the land
within a period of ten years (and that is all that is proved)
is simply no diligence. It was the duty of the surviving
partners to proceed to settle the business of the partnership
without delay, and it was the duty of the administrator to
see that they did so. They could have been coerced thereto
by action of the county court, (Kev. Stat. 1874, p. 120, sees.
89, 00,) or, upon application to a court of chancery, they
could have been removed from their trust and a receiver have
been appointed. {Nelson v. Hayncr et al. 66 111. 487.) So
far as this record discloses, this administrator has made no
effort to close up this estate during this long period of time.
He has stood idly by and suffered the surviving partners to
378 Anderson v. Fruitt. [Jan.
Syllabus. Opinion of the Court.
act, or not act, as they chose, and the creditors of the estate
have acquiesced in this laches by taking no action themselves.
The court below erred in disallowing the defence of laches
and decreeing the sale. The decree will, therefore, be re-
versed.
Decree reversed.
•*
Elizabeth Anderson
v.
Thomas E. Fruitt.
Filed at ML Vernon January 22, 1884.
Appeal— final judgment in Appellate Court — what so regarded — and in
what manner to be shown. Where the Appellate Court reverses the judg-
ment of the circuit court, and remands the cause without any specific direc-
tions, but generally for such other proceedings as to law and justice shall
appertain, no appeal or writ of error lies from such judgment of the Appel-
late Court, it not being a final one. This court can not look into the opinion
of the Appellate Court to see what it may have directed to be done. This
must appear from the judgment or final order of that court.
Writ of Error to the Appellate Court for the Fourth Dis-
trict ; — heard in that court on writ of error to the Circuit
Court of Madison county; the Hon. William H. Snyder,
Judge, presiding.
Messrs. Happy &• Travous, for the plaintiff in error.
Messrs. Irwin & Springer, for the defendant in error.
Mr. Justice Scott delivered the opinion of the Court :
This action was originally commenced in the circuit court
of Madison county, by Thomas E. Fruitt, administrator of
the estate of John P. Anderson, deceased, against Elizabeth
1884.] Anderson v. Fruitt. 379
Opinion of the Court.
Anderson, conservatrix of John Anderson, an insane person.
The declaration is in the usual form in assumpsit, and con-
tains the common counts, to which the general issue was
pleaded, and it was agreed the plea of the Statute of Limita-
tions may be considered pleaded in due form, with the proper
issue given thereon. The cause was submitted to the court
for trial without the intervention of a jury, and the court
found the issues for defendant, and rendered judgment against
plaintiff for costs. On a writ of error sued out by plaintiff,
that judgment was reversed in the Appellate Court for the
Fourth District, and the "cause remanded to the circuit court
for such other and further proceedings as to law and justice
shall appertain." It is obvious this is not a final judgment,
in the sense those terms are used in the statute, so that the
unsuccessful party could bring the cause to this court on ap-
peal or writ of error. No direction is given in the judgment
or final order of the Appellate Court to the circuit court, other
than simply remanding the cause for "such other and further
proceedings as to law and justice shall appertain." This
court can not look into the opinion of the Appellate Court
to ascertain what that court may have directed to be done.
{Coalfield Coal Co. v. Peck, 98 111. 139.) It must appear
from the judgment or final order of that court. Harzfelcl v.
Converse, 105 111. 534.
As the judgment rendered by the Appellate Court is not a
final judgment in the sense those terms are used in the stat-
ute, the writ of error herein must be dismissed.
Writ of error dismissed.
380 Parsons et al. v. Gas Light & Coke Co. [Jan.
Syllabus. Statement of the case.
Charles Parsons et al.
v.
The East St. Louis Gas Light and Coke Company.
Filed at Mt. Vernon January 22, 1884.
1. Taxation — when a personal tax. Taxes assessed on the capital stock
of a corporation are a personal property tax.
2. Same — when personal tax becomes a lien. A tax on personal property
does not become a lien on any personal property until the tax books are
delivered into the hands of the collector, and it does not become a lien on
real estate until the collector, on failure to collect the tax from personal prop-
erty, charges the same on such real estate in his application for judgment for
delinquent taxes.
3. Same — priority of lien of trust deed. A corporati 
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